COMMENTS
C.P.R. (CHANGE THROUGH PROPORTIONAL
REPRESENTATION): RESUSCITATING A
FEDERAL ELECTORAL SYSTEM
MARY
A. INMANt
Electoral mechanisms are strange devices-simultaneously cameras and
projectors. They register images which they have partly created themselves.I
Nothing is more certain than that the virtualblotting-out of the minority
is no necessary or natural consequence offreedom; that,farfrom having
any connection with democracy, it is diametrically opposed to the first
2
principle of democracy-representationin proportionto numbers.
INTRODUCTION
Although this country was founded on the belief that government is a "science of experiment,"3 the congressional electoral
system has changed only inconsequentially since its inception over
200 years ago. Congress and the courts have made no real attempts
to refine the extreme form of majority rule adopted by the
Founding Fathers following the Revolutionary War.4 As a result,
t B.A. 1990, Bowdoin College;J.D. Candidate 1994, University of Pennsylvania.
This Comment was written in conjunction with Lani Guinier's class, Law and the
Political Process. I am grateful to Professor Guinier for her guidance and to
ProfessorJack Nagel, Lani Remick, Seth Galanter, and Matt Pawa for their thoughtful
suggestions. I would also like to thank my fellow Law Review editors for their
invaluable assistance and Joann and Joseph Inman, Hal Inman, David Fogler, and
JenniferJames for their constant support.
I dedicate this Comment to my grandmother, Elissa Nasuta, whose strength and
independence continue to inspire me.
'Maurice Duverger, Which Is the Best Ekctoral System?, in CHOOSING AN
ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES 31, 34 (Arend Lijphart & Bernard
Grofman
eds., 1984) [hereinafter CHOOSING AN ELECToRAL SYSTEM].
2
JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 107
(Currin V. Shields ed., 1958) (1865).
3 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 226 (1821).
" This is true despite the fact that there are many possible alternative electoral
systems, see infra note 31 and accompanying text, several of which have been used
(1991)
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UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141: 1991
congressional electoral procedures have failed to keep pace with our
with great success in other democracies. Although the United States's continued
adherence to a system of immoderate majority rule is difficult to explain, its status
as one of the first modern democracies suggests a reason for its original attachment
to the system: the nation's leaders did not have other models from which to learn.
See Interview with Lani Guinier, Professor of Law, University of Pennsylvania Law
School, in Philadelphia, Pa. (Oct. 16, 1992). Notably, although following the United
States's lead in many respects, most other democracies have not assimilated its
extreme form of majority rule but have instead adopted some form of proportional
representation. See John R. Low-Beer, The ConstitutionalImperative of Proportional
Representation, 94 YALE LJ. 163, 185 n.99 (1984) (noting that "[s]ome form of
[proportional representation] is used in every continental European democracy except
France"); Lewis Beale, A Vote for Change, L.A. TIMES, Nov. 8, 1992, at E2 (stating that
the majority of the democracies emerging from the former Soviet Union are adopting
proportional representation and that "[t]hroughout most of the democratic world, the
two-party, winner-take-all system is viewed as some sort of relic, used only by a
handful of former British colonies-such as Canada and the United States").
American arrogance provides one possible explanation for the United States's
reluctance to stray from its original course. Because they view their country as the
quintessential democracy, Americans are unlikely to move away from their
monopolistic form of majority rule and learn from other "more evolved" democracies.
See FRANCIS F. PIVEN & RIcHARD A. CLOWARD, WHY AMERICANs DON'T VOTE 3-4
(1988) (arguing that American leaders claim that "other nations should measure their
progress toward democracy by the extent to which they develop electoral institutions
that match our own" and criticizing this self-congratulation given the fact that "the
United States is the only major democratic nation in which the less well off are
substantially underrepresented in the electorate"); Sanford Levinson, Gerrjmandering
and the Brooding Omnipresence ofProportionalRepresentation: Why Won't It Go Away?,
33 UCLA L. REV. 257, 258 (1985) (noting American indifference to the proportional
representation schemes used in many continental democracies).
Finally, one of the most obvious possible reasons for the failure of Americans to
explore alternative electoral systems is the typical reluctance of those in power to
"share the wealth." See MILL, supra note 2, at 119 (predicting America's unfailing
adherence to immoderate majority rule on the grounds that "[iln the United States,
where the numerical majority have long been in full possession of collective
despotism, they would probably be as unwilling to part with it as a single despot or
an aristocracy"); see also infra note 160 (arguing that Congress would not vote to
diminish its incumbency).
Recent stirrings in the area of alternate electoral systems and voting system
reform present hope, however, that this tendency not to pursue electoral change can
be overcome. In Washington, the state legislature has a bill before it that would allow
cities and counties to adopt proportional representation for elections to their
governing councils. See Letter from Matthew Cossolotto, President & Board Chair,
CPR!, to CPR! Members 2 (Feb. 1993) (on file with author) [hereinafter Membership
Letter]. The Cincinnati City Council has voted to put a proportional representation
system on its ballot this May, and proportional representation may also be on the
ballot this year in Worcester, Massachusetts. See id. at 2-3. The recent formation and
successes of CPR! (Citizens for Proportional Representation), a national organization
with several local chapters dedicated to raising public awareness about proportional
representation voting systems, also suggests an increased willingness on the part of
some Americans to re-examine our electoral system. See id.
1993]
PROPORTIONAL REPRESENTATION
1993
country's expanding concept of political equality, adhering instead
to the narrow, eighteenth-century interpretation of that right.
The United States's congressional electoral system includes a
"winner-take-all" method of distributing electoral victory and a
statutory requirement of single-member districts as the arena for
individual election contests. 5 A system characterized by these two
elements is aptly labelled "extreme majority rule" because the votes
of members of any group constituting a minority in a given district
are essentially wasted. In an election for a seat in the House of
Representatives, for example, a candidate receiving 51% of the vote
in her single-member district becomes the representative of 100%
6
of the district despite the disagreement of 49% of those voting.
The votes of the 49% minority may be described as "wasted"
because they are insufficient to elect a representative in the singlemember district.7 Conversely, votes are also wasted when a
candidate in a single-member race garners more than the necessary
51% of the vote.8 As 51% is sufficient to win the election, any vote
beyond that amount is "wasted" in that it is not necessary to elect
the candidate.
Proponents of the current system claim that these votes are not
wasted because they serve the function of communicating voters'
preferences. 9 According to this viewpoint, an individual's vote is
5 In 1842, Congress passed a statute requiring single-member districts for
congressional elections. See Act ofJune 25, 1842, § 2, 5 Stat. 491. Though repealed
in 1929, this requirement was reinstated in 1967 and is still in effect today. See 2
U.S.C. § 2c (1988); see also Whitcomb v. Chavis, 403 U.S. 124, 158 n.39 (1971)
(describing the evolution of the requirement).
6See Low-Beer, supra note 4, at 164 n.4 (noting that the winner-take-all electoral
system is heavily biased toward overrepresentation of the majority).
7 See WALTER BAGEHOT, THE ENGLISH CONSTITUTION 165 (1963) (claiming that
the votes of minorities in single-member districts are "thrown away"); Edward Still,
Alternatives to Single-MemberDistricts,in MINoRIrY VOTE DILuTION 249,252 (Chandler
Davidson ed., 1984) (criticizing the current majoritarian system for its potential to
"leave 49 percent of the people in a district... with nothing to show for having gone
to the polls except a patriotic feeling").
8 For brevity's sake, this Comment will use 51% when describing the threshold
required for election under the current system. The 51% figure is not completely
accurate, however, since only one vote more than 50% is truly required to establish
a majority. The 51% majority is also a generalization because a lower plurality
threshold may be required in the case of an election with three or more strong candidates. See infra note 11 and accompanying text.
9 See, e.g., Davis v. Bandemer, 478 U.S. 109, 132 (1986) (White, J., plurality
opinion) (suggesting that people who vote for the losing candidate are not left
unrepresented because all constituents, whether they voted for the winning candidate
or not, have the same opportunity to influence that candidate once she is in office).
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
never wasted; the nature of an election contest simply demands that
some expressions of preference must lose in accommodating the
will of the majority.1 0 This argument fails to mention, however,
that the supposed "will of the majority" may in fact be determined
by less than a majority of those voting, in which case the majority of
votes cast would actually be wasted. Imagine, for example, an
election contest between three strong candidates, A, B, and C, who
receive 32%, 33%, and 35% of the vote, respectively. Although she
has earned only 35% of the vote, C wins, and will represent 100% of
the district. Those who voted for A or B, composing 65% of the
vote (the true "majority"), will not be represented by the candidate
of their choice. The results could be even more extreme in an
Thus, arguments that
election with more than three candidates.
wasted votes are a necessary evil in determining the will of the
majority are deceiving-the current electoral system often leads not
to majority rule, but to plurality rule, with the majority of voters not
"ruling" at all.
The above example shows how the winner-take-all nature of our
electoral system creates the possibility that a majority will be ruled
by the will of a mere plurality. Coupled with the winner-take-all
rule, the single-member-district requirement, however, is also
responsible for the wasting of a significant number of votes. In an
election for a state's four representatives to the House of Representatives, for instance, a minority that constitutes 32% of the popular
vote statewide, but whose members are distributed among all four
districts in equal numbers will probably receive no representation. 12 Under a proportional system, 20.01% of the total popular
vote would always be sufficient to elect one of the four represen10 See ROBERT G. DIxON, JR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT
IN LAW AND PoLITIcs 38 (1968) (claiming that "[t]he essence of all government is the
creation of a set of power relationships whereby a part may conclude the whole");
Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 719 (1985)
(pointing out that the principle of minority acquiescence, i.e., that minorities are
supposed to lose in a democratic system, is entirely consistent with democratic
theory).
11 See Still, supra note 7, at 250 (noting the inverse relationship between the
number of candidates and the percentage of votes required to win).
12 Assuming several strong candidates divide the vote, it is conceivable that a
minority could win an election under the current system with less than 33% of the
vote. For purposes of brevity, however, this Comment will use 33% as shorthand for
the minimum amount capable of winning under plurality rule.
PROPORTIONAL REPRESENTATION
1995
tatives in a statewide contest.13 Under the current system, the 32%
minority is unable to elect a single candidate. Moreover, the other
68% of the voters elect all four of the representatives. Aggregating
the wasted votes from all of the single-member-district contests
statewide reveals significant potential voting strength which is
unusable under the current electoral system.
While it is true that some voters must lose in every election, it
does not follow that votes have to be wasted to this extent. 14 The
Constitution does not require this result. 15 Sections 2 and 3 of
Article I of the Constitution outline how the House of Representatives and Senate shall be composed, but do not provide a specific
type of electoral system for the election of representatives and
senators. 16 Although no electoral system guarantees complete
representation for every voter, 17 several systems are capable of
distributing electoral success far more proportionately than our
own. Despite its potential for variability, however, the congressional
electoral system has historically been treated as an unalterable
18
method and has evaded any serious revisionist attention.
I The figure of 20.01% was calculated using the Droop formula. See infra note
38 and accompanying text.
14 See MILL, supra note 2, at 103 (accepting the assumption that the majority
should prevail over the minority, but questioning the necessity of the majority
receiving all the votes and the minority none).
15
See Peter H. Schuck, The Thickest Thicket: PartisanGerymanderingandJudicial
Regulation of Politics, 87 COLUM. L. REV. 1325, 1349 n.97 (1987) (noting that
legislative districting in Congress is not constitutionally mandated).
16 See U.S. CONST. art. I, §§ 2, 3.
17 The only electoral system that guarantees complete representation is direct
democracy, in which each citizen represents herself. Although direct democracy
guarantees each citizen her own representative, i.e., herself, it does not escape the
problem of wasted votes. In a nationwide vote to determine the fate of a particular
bill, for instance, a citizen's vote will be wasted if she is not part of the 51% majority.
See infra note 147 (discussing the impossibility of eliminating wasted votes at the
legislative level). Even if direct democracy was feasible in the United States today,
which it is not, the Guarantee Clause of the Constitution requires a republican form
of government whereby individuals are represented by elected officials. See U.S.
CONST. art. IV, § 4 (stating "[t]he United States shall guarantee to every State in this
Union a Republican Form of Government").
is See Arend Lijphart & Bernard Grofman, Choosing An Electoral System, in
CHOOSING AN ELECTORAL SYSTEM, supra note 1, at 3, 12 (noting the United States's
reluctance to abandon even minor aspects of its national electoral system, much less
switch from winner-take-all, plurality rule to proportional representation).
In contrast, our country's electoral college system has been subjected to
numerous attacks throughout its 206-year history. See AlbertJ. Millus, The Electoral
College-Should Anything Be Done About It?, 54 N.Y. ST. B.J. 84, 84 (1982); see also
LAWRENCE D. LONGLEY & ALAN G. BRAUN, THE POLITICS OF ELECTORAL COLLEGE
REFORM 42 (1972) (noting that "'[t]he road to reform in the method of choosing the
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
This Comment proposes the abandonment of the electoral
system currently employed for election of members of the House of
Representatives. 19 It argues that an electoral system based on
Presidents and Vice Presidents of the United States is littered with the wrecks of
previous attempts'" (quoting Arthur Krock)). In fact, Congress currently has before
it three proposed constitutional amendments concerning electoral college changes.
See SJ. Res. 312, 102d Cong., 2d Sess. (1992); SJ. Res. 302, 102d Cong., 2d Sess.
(1992); SJ. Res. 297, 102d Cong., 2d Sess. (1992).
19 The method of election to the Senate is not challenged here because of the
following significant differences between that body and the House. Unlike members
of the House, the two senators from each state usually do not come up for election
at the same time because their six-year terms are staggered. Therefore, each Senate
position is a single-member office, like the Presidency, and a senatorial election is a
winner-take-all election. Unlike an election for multiple members of the House of
Representatives, in which it is possible under certain electoral systems for several
groups to receive a number of representatives in proportion to their strength in the
electorate, a single senator cannot be divided proportionately. The successful
majority or plurality must take "all of" the senator, and thus there is no alternative
but to deny the remaining voters a representative of their choice.
In allotting each state two senators regardless of the size of its population, the
Founding Fathers rejected the ideal of proportionate strength in the Senate. See
CONGRESSIONAL QUARTERLY, CONGRESSIONAL QUARTERLY'S GUIDE TO CONGRESS 75
(4th ed. 1991) [hereinafter GUIDE TO CONGRESS] (noting that the very nature of the
Senate-where Wyoming has as much power as California with more than 50 times
the population-dearly violates the principle of one person, one vote and would be
struck down by the Supreme Court as unconstitutional if it were not part of the
Constitution itself). The Senate's winner-take-all, plurality system is similarly
antithetical to proportionality. The House of Representatives, however, was
envisioned as an institution which would reflect each state's relative population
strength. See Wesberry v. Sanders, 376 U.S. 1, 14 (1964) (noting that "equal
representation in the House for equal numbers of people" was the principle solemnly
embodied in the "Great Compromise"). An electoral system that distributes
representatives proportionately would most accurately achieve this goal. Thus, the
principles behind the "Great Compromise" support requiring an electoral system
based on proportional representation for the House of Representatives, while
allowing the current winner-take-all, plurality system for senatorial elections. See
GUIDE TO CONGRESS, supra, at 692 (explaining the "Great Compromise" as the
concession reached by large states, which wanted congressional representation to be
based on population, and small states, which wanted equal representation in
Congress, to allow for equal representation of the states in the Senate and
proportional representation in the House).
Although senatorial elections are impervious to electoral reform via proportional
representation for the reasons mentioned above, they may still be revised by other
methods. For instance, the current single-member-district plurality system may be
replaced by a single-member-district preferential system. Presently used by the
Australian House of Representatives and for the Irish presidency, the single-memberdistrict preferential system requires a candidate to receive an absolute majority of the
district vote and requires a voter to rank the candidates in order of preference. See
THOMAS T. MACKIE & RICHARD ROSE, THE INTERNATIONAL ALMANAC OF ELECTORAL
HISTORY 226,503 (1991). However, an absolute majority frequently is not obtained
on the first count-given the presence of three or more strong candidates-in which
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PROPORTIONAL REPRESENTATION
1997
proportional representation should be adopted instead. 20 While
ideally electoral mechanisms should be cameras objectively
registering the contours of public opinion, in actuality they are also
21
projectors actively shaping the physiognomy of public opinion.
This Comment will argue that, compared to our current majoritarian system, a proportional representation system would more
accurately reflect this country's current concept of political equality
and more equitably shape our developing ideas on the meaning of
that right.
case the candidate with the least votes is eliminated and her ballots are transferred
to the second preferences expressed by those voters. If no candidate receives
majority support after such transfer, the process continues until a majority is achieved
and a winner is thereby declared. See id.
This type of preferential voting can also be used in the single-transferable-vote
form of proportional representation advocated in this Comment for elections in the
House of Representatives. See infra part I.A. Many of the benefits described therein
also extend to a single-member-district preferential system for the Senate. See infra
part I.B. However, the single-member-district aspect of single-member-district
preferential systems poses its own unique challenges. For instance, because it is often
difficult for a candidate to receive 51% of the vote with three or more strong
candidates present, a single-member-district preferential system would require
candidates to appeal to smaller parties for support, perhaps nominating coalitional
candidates. See J.F.H. Wright, Australian Experience With Majority-Preferentialand
Quota-PreferentialSystems, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES
124,131 (Bernard Grofman & Arend Lijphart eds., 1986). As opposed to the current
plurality system which allows candidates to win with 33% of the vote and without
incorporating other groups, winners under the preferential system need broader
support (51%) before they can "take all" of the representation. Although a maximum
of 49% of the voters in senatorial elections may still go unrepresented, the singlemember-district preferential system is incapable of wasting 67% of the vote, a clear
possibility under the present plurality system. Adopting a preferential voting system
in both the Senate and the House would provide comprehensive electoral reform.
20 In so doing, it strikes out in a direction different from that of most current
attempts at voting rights reform. Cf Bruce E. Cain, Voting Rights and Democratic
Theory: Toward a Color-Blind Society?, in CONTROVERSIES IN MINORrTY VOTING: THE
VOTING RIGHTS ACT IN PERSPECTIVE 261, 276-77 (Bernard Grofman & Chandler
Davidson eds., 1992) [hereinafter CONTROVERSIES IN MINORITY VOTING] (advocating
that more emphasis be placed on broader political challenges and structural changes,
rather than voting rights per se). Three of the last four constitutional amendments,
for instance, have expanded the right of suffrage to embrace a larger cross-section of
the population. See U.S. CONST. amend. XXIII (giving residents of Washington, D.C.
a vote in presidential elections in 1961); U.S. CONST. amend. XXIV (abolishing the
poll tax in 1964); U.S. CONST. amend. XXVI (lowering the voting age to 18 in 1971).
Expanding the right to vote has little significance, however, when the system within
which the vote is counted accords it no weight. See PIVEN & CLOWARD, supra note 4,
at 3 (noting that "the vote itself is meaningless ... unless diverse interest groups can
also compete for influence").
21 See supra text accompanying note 1.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
The Supreme Court and American society have expanded the
concept of political equality since the Founders created our
congressional electoral system. From their initial holding in 1964
that individuals have a right to "fair and effective representation," 22 the Supreme Court has broadened its interpretation to
include a group right to an undiluted vote for political23 and
racial 24 minorities. American society has also become "increasing25
ly sensitive to the political claims of racial and other minorities."
The evolution of the concept of equal representation has not yet
reached its apex in our society, however, because of the extreme
majoritarian bias of our electoral mechanisms. 26 Proportional
representation, on the other hand, would advance this progression.
A switch to proportional representation would involve the
adoption of an electoral system characterized by at-large elections 27 in which seats are divided among groups and/or individuals in proportion to the number of votes each receives. 28 While a
majority of the electors would still elect a majority of the representatives, a minority of the electors would be permitted a minority of
the representatives (instead of none, as in the current system).
Proportional representation thus ameliorates the extreme majoritarianism of the current system, allowing more comprehensive
representation of the diverse tendencies and nuances of American
public opinion. 29 Because it expands political equality to incorpo2 Reynolds v. Sims, 377 U.S. 533, 565-66 (1964) (concluding that "the Equal
Protection Clause guarantees the opportunity for equal participation by all voters in
the election of state legislators").
23 See Davis v. Bandemer, 478 U.S. 109, 124 (1986) (holding that political
gerrymandering claims are justiciable under the Equal Protection Clause).
24 See White v. Regester, 412 U.S. 755, 765 (1973) (sustaining the invalidation of
"multimember districts [that were] being used invidiously to cancel out or minimize
the voting strength of racial groups").
25 Schuck, supra note 15, at 1363; see also Letter from Rob Richie, National
Director, CPRI, to author 2 (Mar. 10, 1993) (on file with author) ("The surge of
grassroots support and votes for independent presidential candidate H. Ross Perot,
the call for more women and racial minorities in elected office and government's
failure to respond adequately to many of the new challenges of the 1990s speak
powerfully
to the need for a fairer voting system.").
26
SeeCain,supranote 20, at 273 (acknowledging "the majoritarian predisposition
of American political culture" and arguing that its predominance will outweigh
minority gains under the Voting Rights Act, thus dooming minorities to continued
political marginalization).
27 In an at-large election, "elected officials [are] chosen by the voters of the State
as a whole rather than from separate congressional ... districts." BLACK'S LAW
DIcTIONARY 125 (6th ed. 1990).
28 See Low-Beer, supra note 4, at 164 n.4.
29 Although proportional representation does not require that a candidate receive
PROPORTIONAL REPRESENTATION
1999
rate the right of all groups to have an equal opportunity to win
elections, a proportional representation system reflects a broader
vision of equality than that achieved by simply ensuring an individual the right to vote.
Because electoral systems in this country are accepted as
constants, the narrow view of political equality implicit in the
present system has been largely overlooked. In creating an overrepresentation of the majority, the present system permits the votes
of the minorities in single-member districts-although significant
statewide-to be less effective in influencing the election result than
the votes of the majority. Thus far, the courts have provided no
remedy for this ineffectiveness. Instead, their definition of equal
representation appears to be satisfied simply by ensuring each
individual formal access to the ballot; the effect that the system has
on the impact and strength of that vote as combined with other
votes is not considered.30 This Comment argues that courts err in
not considering such systemic factors. Furthermore, it proposes
that the courts are the ideal mechanism for implementing the
solution to the problem-proportional representation.
I. PREFERRING PROPORTIONAL REPRESENTATION TO THE CURRENT
SYSTEM: APPLICATIONS, BENEFITS, AND CRITICISMS
A. ProportionalRepresentation in Practice:
The Single Transferable Vote
Although proportional representation can be implemented in a
variety of forms,3 1 the single-transferable-vote ("STV") variant
should be employed for election of the House of Representatives.3 2 Because the Supreme Court has interpreted "fair and
a majority of the votes cast in order to win the election, it does not eschew all
manifestations of majoritarianism. For instance, the body to which the representatives are elected-Congress-would still be governed by majority rule. Also, as
mentioned above, a group constituting a majority of the state would continue to elect
a majority of the representatives.
o See infra notes 244-49 and accompanying text.
31 See Low-Beer, supra note 4, at 164 n.4. (listing the best-known types of
proportional and semiproportional electoral systems as the Hare system of single
transferable votes, the several kinds of list proportional representation, and
cumulative voting).
32 Single-transferable voting is not new to the United States. It has been used in
local government for the election of city councils and school boards in approximately
two dozen cities. See Leon Weaver, The Rise, Decline, and Resurrectionof Proportional
Representationin Local Governments in the United States, in ELECTORAL LAWS AND THEIR
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
effective representation" to include the right to an equally powerful
vote,3 3 the electoral system that best achieves proportionality while
wasting the fewest votes should thus be mandated.M It is beyond
the scope of this Comment to measure and compare the different
varieties of proportional representation on the issue of minimizing
wasted votes.3 5 For reasons that will be discussed below, it is
widely accepted that STV proportional representation is unparalleled in this regard.36
Under an STV system, voters throughout a state vote for any of
the candidates running for representative statewide, and they may
number all or some of those candidates in the order of their
preference from favorite to least favorite. In an election in North
Carolina, for instance, with twenty-four candidates running for its
POLITICAL CONSEQUENCES, supra note 19, at 139, 140, 150-51 (noting that "local
controversies over [proportional representation] in the United States have been
dominated more by considerations of who gets or keeps power than by abstract
considerations of what is the best polity"). Presently, STV is used to elect the
Cambridge City Council and School Committee and 32 community school boards in
New York City. See Joseph F. Zimmerman, Fair Representationfor Minorities and
Women, in UNITED STATES ELECTORAL SYSTEMS: THEIR IMPACT ON WOMEN AND
MINORITIES 3,4 (Wilma Rule &Joseph F. Zimmerman eds., 1992) [hereinafter UNITED
STATES ELECTORAL SYSTEMS]. At the national level, STV is used for election to the
Irish Parliament and the Australian Senate. See MACKIE & ROSE, supra note 19, at 2,
224.
33 See discussion infra part III.B.
34 See Alexander A. Yanos, Note, Reconcilingthe Right to Vote with the Voting Rights
Act, 92 COLUM. L. REV. 1810, 1864-65 (1992) (noting that multiple scholars "have
praised ST's ability to implement the Reynolds ideal [of 'fair and effective
representation'] better than any other system"); see also discussion infra part
III.B.3.a.ii.
35 Cumulative voting, to give one counterexample, has a high probability of
wasting votes in a semiproportional system. In a cumulative voting system, a voter
has as many votes as there are seats to be filled and may cumulate them among a
smaller number of candidates. See Still, supra note 7, at 255-56. Such a system
requires considerable use of strategy. A party must be careful to nominate only those
candidates it is confident of electing and to strictly instruct its supporters how to
spread their votes. See id. at 256. If a party nominates more candidates than it has
strength to elect, it risks splitting its vote among a number of candidates, thereby
depriving all of them the amount necessary for election. See id.
s6 See Yanos, supra note 34, at 1861 (noting that in an STV system "'wasted' votes
are kept at a minimum" and "each individual's vote is as 'effective' as possible"
(footnote omitted)); see also Enid Lakeman, The CaseforProportionalRepresentation,in
CHOOSING AN ELECTORAL SYSTEM, supra note 1, at 41, 44-45 (claiming that STV
actually achieves proportionality and facilitates recognition of more complex voter
preferences); Still, supra note 7, at 264 (describing STV proportional representation
as "the most attractive of the four" in an analysis of limited voting, cumulative voting,
add-on voting, and STV proportional representation).
PROPORTIONAL REPRESENTATION
2001
twelve seats to the House of Representatives,37 a voter would rank
the candidates from one to twenty-four, with number one signifying
her first-choice candidate. Like the current system, voters are
allowed to vote for only one seat (that is, their vote will count only
once in any case). After all votes are cast, the victors are determined using the Droop formula, which calculates the total number
of votes a candidate needs for election.38 Borrowing the numbers
from the 1990 election for the House of Representatives in North
Carolina, in which 2,009,217 people voted, 9 the threshold for
election for each of the twelve seats would be 7.7% of the popular
vote.40 If candidate A surpasses the threshold required for election, in this case 7.7%, any surplus votes for candidate A do not
count toward her election but are transferred to the voter's second
choice, candidate B, or the next sequential choice who is not already
elected. 41 After all such surpluses are transferred, candidates
7 See GUIDE TO CONGRESS, supra note 19, at 741.
38 The general formula for the Droop quota (p%) requires dividing the total
number of valid ballots (v) by the number of seats to which candidates may be elected
(s) plus one, adding one to the result, dividing by v, and converting to a percentage
of v. Thus:
V
__+1
P%= s+1 x10
V
See George H. Hallett, Jr., ProportionalRepresentationwith the Single Transferable Vote:
A BasicRequirementforLegislativeElections, in CHOOSING AN ELECTORAL SYSTEM, supra
note 1, at 113, 118. The crucial variable in the Droop formula is the number of seats,
as the larger s is, the more proportional the system. See REIN TAAGEPERA & MATTHEW
S. SHUGART, SEATS AND VOTES 112 (1989) (noting that "the number of seats allocated
in an electoral district has a stronger impact on proportionality than almost any other
factor"). With one vote for each voter in a nine-member district, for example, any
candidate who receives at least one vote more than one-tenth of the votes cast is sure
of election. This outcome results because it is impossible for ten candidates to
receive more than one-tenth of the vote each; thus, only nine winners will be chosen.
See Hallett, supra, at 118.
39 See U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES:
1992, at 272. According to the census, in 1990 the voting age population of North
Carolina was 5,061,000, and 39.7% of those people voted in the election for the
House of Representatives.
40 The following application of the Droop formula produces the 7.7% figure:
2,009,217 +1
12+1
2,009,217 x100=7.69%
41 See Hallett, supra note 38, at 118. Deciding which votes will remain with the
winner and which votes will be surplus is an arbitrary choice involving an element of
2002
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
unable to reach the minimum of votes required are eliminated; the
eliminated candidate's ballots are transferred in the same manner
as the surplus ballots. 42 This process of successive defeats and
transfers continues until the desired number of candidates have
completed their quotas and been declared elected. 43 Because
votes ordinarily wasted on candidates who do not need them or who
cannot be elected by them are transferred to a voter's next
preference, 4 4 this system of election minimizes the number of
wasted votes 45 and, as will be shown, thereby increases its legitimacy.
B.
The Benefits of ProportionalRepresentation Generally
and the Single Transferable Vote in Particular
Although no electoral system is a panacea, the STV form of
proportional representation offers considerable benefits as well as
redresses many of the shortcomings of the present system. Several
of the benefits inhere in the proliferation of third parties and
minority representation expected under proportional representation. As minorities and alternative parties are able to receive
representation in proportion to their numbers in the population,
the current Democratic-Republican duopoly in the House of
Representatives will be dismantled, thereby expanding debate in
campaigns and in the House of Representatives itself. Creating a
chance. See Daniel R. Ortiz, Note, Alternative Voting Systems as Remedies for Unlawful
At-Large Systems, 92 YALE L.J. 144, 150-51 n.30 (1982). Therefore, rather than
transferring any particular surplus votes, a process known as the Gregory procedure
reduces all of the winner's votes in value to the ratio of her surplus to her total votes.
For example, if a candidate received 40 votes more than the quota to be elected of
80, all 120 votes would receive a new value of 40/120, or 1/3, and then be
redistributed according to each voter's next preference. The only exception to this
principle is that ballots that do not indicate a second choice will not be transferred
and must remain with the winner. See id.; see alsoJ.F.H. Wright, An ElectoralBasisfor
Responsible Government: The Australian Experience, in CHOOSING AN ELECTORAL
SYSTEM, supra note 1,at 127,131 (crediting the Gregory procedure with removing the
element of chance from the transfer of surplus votes of elected candidates).
42 See Hallett, supra note 38, at 118.
43 See id. at 119.
44 See id. at 119-20 (claiming that voters in an STV system can feel safe in voting
in their order of preference, even if their favorite candidate has a small chance of
election, because no later choice is ever counted unless and until all earlier choices
are elected or defeated).
45 Some wasted votes are inevitable as the Droop formula provides the quota
necessary to win each available seat. This quota is the smallest number that cannot
be beaten by another candidate, see id. at 118; therefore, once each of the candidates
has attained her quota, there will be some extraneous votes.
1993]
2003
PROPORTIONAL REPRESENTATION
heterogeneous legislature in a heterogeneous society, STV proportional representation will increase the legitimacy of the electoral
system, 4 6 which, in turn, could renew faith and a desire to participate in the presently disenchanted. 47 Though many of the benefits
discussed in this section are also benefits that apply to proportional
representation systems generally, the benefits accruing from the
structure of STV are peculiar to the STV form of proportional
representation.
1. Inhibiting the Entrenchment of the Two Major Parties
and Facilitating the Proliferation of Third Parties
"The House of Representatives would become representativeinfact as in
name. 48
The current electoral system for the House of Representatives
perpetuates the dominance of the two-party system and thereby
restricts the presence of third parties in that body.49 The 51%
threshold presumes a two-party contest.5" This presumption is
justified because "out of an unlimited number of parties, only two
can expect either to win a majority of the seats, or to be the
strongest opposition, with a chance to win an absolute majority in
the next election." 51 Similarly, surpassing the 51% threshold is
difficult to achieve without the established infrastructure that the
two major parties possess. Unless a minority party is cohesive, wellorganized, and concentrated in large numbers in a single-member
district, it has little chance of electing a representative. 52 People
46
See Lani Guinier, Second Proms and Second Primaries: The Limits of Majority Rule,
BOSTON REV., Sept./Oct. 1992, at 32, 34 (criticizing the presence of a homogeneous
legislature
in a heterogeneous society).
47
See RuY A. TEIXEIRA, THE DISAPPEARING AMERICAN VOTER 5,59, 101-02 (1992)
(describing the vicious cycle that low and steadily declining voter turnout among the
poor, minorities, and the young over the past three decades contributes to a policy
agenda unrepresentative of their interests which, in turn, contributes to their
alienation from politics).
48 Ferdinand A. Hermens, Representation and Proportional Representation, in
CHOOSING AN ELECTORAL SYSTEM, supra note 1, at 15, 20 (quoting CLARENCE G.
HOAG
& GEORGE H. HALLETT, JR., PROPORTIONAL REPRESENTATION 433-34 (1926)).
49 See generally NORMAN J. ORNSTEIN ET AL., AMERICAN ENTER. INST., VITAL
STATISTICS ON CONGRESS 1991-1992, at 42 (1992) (finding that in 1992 only one of
the 435 members of the House of Representatives was a member of a third party).
50 See SAMUEL
MERRILL, III, MAKING
MULTICANDIDATE
ELECTIONS
MORE
DEMOCRATIC 8 (1988) (describing the principle that plurality voting favors a two-party
system as Duverger's law).
51 Hermens, supra note 48, at 22.
5
2 See Bernard Grofman & Lisa Handley, Preconditionsfor Black and Hispanic
2004 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
lucky enough to reside in an area where people with similar political
inclinations constitute a plurality get representation; people who are
5
geographically isolated from those with similar values do not.
Therefore, contrary to the Supreme Court's mandate, the "weight
"54
of a citizen's vote" is made to "depend on where he lives.
The duopoly created by the present electoral system, however,
is counterintuitive to traditional American notions of capitalism and
would be considered restrictive and anticompetitive if subjected to
antitrust laws. 55 In the same way "Americans would not accept an
economic system that allowed them to buy cars from only two
companies,"56 Americans should not be forced to choose between
only two parties. Just as a free-market economy results in products
more suited to consumers' tastes, competition between the two
major parties and third and minority parties would bring options to
57
voters and improve the political process.
By conducting at-large elections and allowing representation of
groups in proportion to their strength in the electorate, a proportional representation system would provide representation to many
minority groups and third parties whose voices are currently
drowned out by those of the group constituting a majority in their
geographical district. Under proportional representation, a small
minority dispersed throughout the state and currently segregated by
single-member districts, for example, could unite and vote as a unit.
Because proportional representation lowers considerably the threshold required for election from the present 51%, the minority's
opportunity for electing a representative is dramatically increased.
CongressionalSuccess, in UNITED STATES ELECTORAL SYSTEMS, supra note 32, at 31, 37
(noting the difficulty of politically cohesive Hispanics to achieve representation due
to their typically small, dispersed population concentrations).
5 One response to this predicament is to suggest that voters move to areas in
which they are members of the majority. This suggestion, however, relies on the
unrealistic presumption that every citizen possesses the means and marketable skills
enabling such mobility.
54 Reynolds v. Sims, 377 U.S. 533, 567 (1964) (holding as the basic principle of
representative government that "the weight of a citizen's vote cannot be made to
depend on where he lives").
55 See Matthew Cossolotto, A Competitive Politics, CHRISTIAN SCi. MONrroR, Nov.
21, 1991, at 18; see also Beale, supra note 4, at E2 (noting Cossolotto's observation
that the two-party system "seems to go against every other instinct in the American
lifestyle" as Americans in a supermarket are not overwhelmed by the many different
kinds of cereal but rather are "happy to have choices").
M Cossolotto, supra note 55, at 18.
57
SeeJohn B. Anderson, Break the PoliticalStranglehold, N.Y. TIMES,July 24, 1992,
at A25.
PROPORTIONAL REPRESENTATION
2005
The greater the number of representatives a state has, the lower the
threshold percentage required for election. 58 In California, the
nation's most populous state with fifty-two representatives, only
1.9% of the popular vote would be required for election. 59 In the
six states with only two representatives, 33.4% would be the
threshold for election. 6° Although 33.4% is closer to the percentage required currently in a plurality contest,6 1 it is considerably
lower than the 51% threshold generally required under the present
system. In Western European parliaments, for instance, the lower
threshold of proportional representation has facilitated the presence
of the Green parties, which have been able to influence both
socialist and conservative governments' policies on environmental
protection. 62 Given the increased potential to elect representatives, geographically diffuse groups like women and the poor and
frequently anonymous groups like gays and lesbians would have
incentive to organize and vote as a group.
Advocating an electoral system that allows separate and distinct
representation of minority and alternative parties presumes that
these groups cannot be adequately represented within the existing
two parties. While the two major parties have intermittently
espoused the alternative ideas of outlying groups, 63 they generally
58 See Peter Mair, DistrictingChoices undertheSingle-TransferableVote, in ELECTORAL
LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19, at 289, 301 (noting that
"the potentiality for providing proportional outcomes with STV increases as the size
of the constituency-in terms of seats-is expanded").
59 This percentage is calculated using the Droop formula. See supra note 38 and
accompanying text; see also GUIDE TO CONGRESS, supra note 19, at 741.
Because even very small groups will be capable of achieving representation in
proportion to their voting population, California's low threshold would lead to almost
perfect proportional representation. Although such proportionality is clearly
desirable for reasons of representativeness, diversity and inclusion, competing
concerns exist. A ballot to elect California's 52 representatives, for instance,
conservatively could contain more than 200 candidates. Such a ballot would be
overwhelming to even the most sophisticated and well-informed of voters. Therefore,
in states like California, New York, and Texas, it may be necessary to adopt
multimember rather than at-large districts and thereby endure decreased proportionality for the purposes of manageability.
60 See GUIDE TO CONGRESS, supra note 19, at 741. The six states with only one
representative would continue to use the 51% or plurality threshold of the current
winner-take-all system. See id. However, these states could also adopt the singlemember-district preferential system recommended for senatorial elections. Seesupra
geneally note 19.
See supra note 11 and accompanying text.
62
See Matthew Cossolotto, A Jump Start for American Democracy, UTNE READER,
Nov./Dec.
1992, at 22, 22.
6
3 See Keith D. Eisner, Comment, Non-Major-Party Candidates and Televised
2006
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141: 1991
direct their efforts toward the political center because that is where
the votes for electoral victory are to be found. Following the 1992
presidential election, for instance, commentators credited Bill
Clinton's victory to his departure from the Democratic party's
traditional emphasis on the left. The success of Clinton's strategy
64
was attributed to its focus on courting the voters of the center.
At the same time, the Republican party, with its far-right platform,
conceded the middle imprudently and has been accused of thereby
65
conceding the election.
In a two-party system where bipolarization of alliances directs
the political struggle to the center, groups traditionally on the
fringe, such as minority and third parties, are neglected. 66 African-Americans, for example, have been characterized as "stifled by
the traditional two-party approach to black political participation,"
with Democrats taking them for granted and Republicans ignoring
them.6 7 Although African-Americans "'have been the most loyal
of Democratic voting groups,'" 68 Democrats in Congress have not
reciprocated by actively promoting interests central to the AfricanAmerican community. 69 Under a proportional representation
system, however, politically cohesive African-Americans could elect
representatives with a mandate to represent their chosen interests.
PresidentialDebates: The Merits of Legislative Inclusion, 141 U. PA. L. REv. 973, 983
(1993) (noting that many of the innovative policy stances which the two major parties
have adopted, such as women's suffrage and the encouragement of labor unions, have
actually been formed due to third-party pressure).
64 See Crossfire: Transcript #637 (CNN television broadcast, Aug. 12, 1992),
availablein LEXIS, Nexis Library, CNN File (citing Bill Clinton's support of the death
penalty as an illustration of his intent to ally himself with the political center).
65 See id. (noting Republican Representative Bill Green's statement that "[flor
every vote we pick up on the right because we have this far right platform and
someone comes out who might stay home, we lose two votes in the center because
the guy who switches to Clinton is one vote less for Bush and one vote more for
Clinton").
' See Duverger, supra note 1, at 36 (claiming that the two major parties are "mere
receptacles containing too haphazard a mixture of different elected members to
properly represent the diverse tendencies of public opinion").
67 See Lani Guinier, Keeping the Faith: Black Voters in the Post-ReaganEra,24 HARV.
C.R.-C.L. L. REV. 393, 394 (1989) (noting that mainstream Democrats have refused
to accept black Democrats, such asJesseJackson, as legitimate party spokespersons,
thus distancing themselves from black interests, and also noting Republicans' refusal
to court the black vote at all).
68 Id. at 415 n.98 (quoting Rhodes Cook, Despite Gains in Some Groups, Democrats
Still Have Far to Go, 48 CONG. Q. 3442 (Dec. 3, 1988)).
69 See id. at 416.
PROPORTIONAL REPRESENTATION
2007
2. Expanding Debate in Election Contests and the
House of Representatives
[T]he primary values protected by the First Amendment-"a profound
nationalcommitment to the principle that debate on public issues should
be uninhibite, robust, and wide-open[ "-are served when election
70
campaigns are not monopolized by the existing politicalparties.
By allowing more expression of the diverse components of
American society, a proportional representation system could lead
to a significant renewal of political life within both election contests
and the House of Representatives itself.71 Regardless of the
ultimate legislative successes of minorities and third parties, their
increased presence in election campaigns would create diversity in
the political marketplace of ideas, 72 thus expanding the limited
political debate inherent in the two-party system 73 and contributing to a robust exchange of ideas.
Within the current system, third parties serve as policy innovators and catalysts by raising controversial issues that are later
adopted by the major parties. 74 The third-party candidacy of H.
Ross Perot in the 1992 presidential election, for example, has forced
the Clinton Administration to confront the issue of the budget
deficit. Despite the importance of influencing the political dialogue
and keeping the major parties accountable, this role is still no
substitute for electoral success. Nevertheless, the improbability of
attaining electoral success under the current system means that
third parties must content themselves with the role of vicarious
75
policy innovators.
70 Anderson v. Celebrezze, 460 U.S. 780,794(1983) (quotingNew York Times Co.
v. Sullivan, 376 U.S. 254, 270 (1964)) (holding that Ohio's early filing deadline for
independent candidates unconstitutionally burdened the voting and associational
rights of independent presidential candidate John Anderson's supporters).
71 See Duverger, supra note 1, at 36-37.
72 See Lani Guinier, No Two Seats: The Elusive Quest for PoliticalEquality, 77 VA.
L. REV. 1413, 1461 (1991) (asserting that diversity contributes to the robust exchange
of ideas and that "everyone stands to benefit from the infusion of alternative
viewpoints and from consensus solutions" (citing Metro Broadcasting Inc. v. FCC, 497
U.S. 547, 579 (1990))).
7
3 See GERALDJ. FRESIA, THERE COMES A TIME: A CHALLENGE TO THE Two PARTY
SYSTEM 124 (1986).
74 See Eisner, supra note 63, at 983.
75 See id. at 983 n.40 (noting that "[mlany third-party and independent candidates
run not to win, but to draw attention to the single issue for which their candidacies
stand"). Under a proportional representation system, minority and third parties that
are too small to surpass the threshold of representation will also be relegated to the
limited, though important, role of inducing major-party responsiveness to critical,
2008
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
Under a proportional representation system, with its lowered
threshold for election, minority and alternative parties would be
able to attain representation and advocate their innovative policies
in the House of Representatives themselves. Speaking directly
through their representatives, third parties would avoid the dilution
of their ideas that inevitably occurs when policies are filtered into
major-party programs. 76 Although the representatives elected by
minority and third parties would still be too few in number to
constitute a majority and to enact their policies unilaterally, they
may form coalitions with other parties and thereby determine
policy. Although some dilution of the purity of third-party policies
may still occur, at least the third party would be privy to political
decisionmaking and could condition its compromises in one area on
some form of political concession in another.
While it is not possible for every third party to be a part of the
majority coalition on every issue, the variability of coalitions assures
that there will not be any permanent policymaking winners or
losers. Unlike the current system in which the majority party
controls most decisionmaking, parties under proportional representation must rule by consensus. 77 Large parties will be forced to
consider the perspective of smaller parties if they wish to garner the
support necessary to construct a majority. Because every issue
carries with it the opportunity for a new coalition, competition
among parties will be constant, exchange vigorous, and debate
robust-the essential ingredients of a vital representative govern78
ment.
3. Increasing Legitimacy
An electoral system is legitimate in a republican form of
government when the decisions of its legislative body derive solidly
from the consent of the governed. 79 Because its decisions involve
neglected issues.
76 See id. at 986 (noting that the majority party often adopts the third party's
policy "not out of an altruistic desire to represent minority viewpoints," but rather as
a means of preventing deterioration of the majority party's support).
77 This proposition presumes that the expected proliferation of third-party
representation under proportional representation will make it difficult for any one
party to attain a majority in the legislative body.
78 See DIXON, supra note 10, at 35-57 (arguing that pluralism is the catalyst for true
democracy).
79 See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (stating that
governments derive "their just powers from the consent of the governed").
1993]
PROPORTIONAL REPRESENTATION
2009
the distribution of public benefits-the goods, services, and
opportunities at the disposal of government-the policymaking body
should contain representation from as many of the diverse segments
of the population as possible. 8° The current system, however,
underrepresents the minority in the legislative body.81 Instead of
reflecting the population as a whole, the legislature mirrors only
part of it. Its decisions, therefore, are made by "a majority of the
majority, who may be, and often are, but a minority of the
82
whole."
A system based on proportional representation awards representation in relation to a group's share of the total vote, thereby
minimizing underrepresentation of minorities.
The resulting
diversity of representation will signal to constituents that the system
is legitimate and will promote a "greater readiness to acquiesce in
governmental decisions."8 3 Because individuals and groups are
better able to elect representatives of their choice under a proportional representation system, the incentive to vote will be increased, 84 legislative actions will derive more solidly from consent,
and the House of Representatives will command voter confi85
dence.
80
See generally Milton D. Morris, Black ElectoralParticipationand the Distribution
ofPublicBenefits, in MINORITY VOTE DILUTION, supranote 7, at 271,271 (claiming that
groups incapable of influencing government have been neglected and noting the
historical experience of African-Americans in being served "last and least" in the area
of benefit distribution).
81 See Cain, supra note 20, at 263 (noting the majoritarian bias inherent in the
current system which exaggerates the majority's share of seats and increases the
wasted votes of the minority).
82 MILL, supra note 2, at 104; see also Lani Guinier, Voting Rights and Democratic
Theory: Where Do We Go From Here?, in CONTROVERSIES IN MINORITY VOTING, supra
note 20, at 283, 288 (criticizing the hegemony of a legislative majority "that derives
its legitimacy from the consent of a simple, racially homogenous majority" of the
electorate). But see Schuck, supra note 15, at 1341 (arguing that the constitutional
institutional arrangements of separation of powers, checks and balances, executive
veto, andjudicial review would sufficiently frustrate such a monopoly of the majority,
without recognizing that although these structures might check the growth of
congressional majority influence vis-A-vis the other branches, they fail to provide
minority influence in Congress).
83 Pamela S. Karlan, Maps and Misreadings: The Role of GeographicCompactness in
Racial Vote Dilution Litigation, 24 HARv. C.R.-C.L. L. REV. 173, 180 (1989).
84 Low-Beer notes that the "introduction of [proportional representation] in
Switzerland in 1919 led to a doubling of voter turnout in previously 'safe' cantons."
Low-Beer, supra note 4, at 183 n.91 (quoting SEYMOUR M. LIPSET, THE FIRST NEW
NATION 310 (1963)).
" See Wright, supra note 41, at 127.
2010
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141: 1991
4. Liberating Forced Constituencies
Forcing "persons who are not associated by any pervading harmony of
mind orfeeling, but aregathered togetherby the mere accident of livingin
the same district or town ... always to agree in the choice of their
representatives [is] inconsistent with the free exercise of individual
will, 8 6
Under the current system, a significant number of individuals
can be caught in a constituency with a representative whom they do
not support.8 7 This is true because constituencies are currently
formed by law88 based on the geography of single-member districts
rather than by the electorate themselves based on shared interests.
Because membership in a constituency is prescribed by residence,
Republicans in an industrial city, for example, will consistently be
represented by Democrats, despite their opposing values; this is a
weak representational right. The Supreme Court, however, recently
defended "compulsory constituencies " 89 on two grounds: first,
voters for both the losing and winning candidates have an equal
opportunity to influence the elected representatives; and second,
voters for the losing candidate can be represented by representatives from other districts who share their views.90
These justifications are unconvincing. It is unrealistic to assume
that a minority within a district will receive any significant representation of its interests from a representative elected with an antithetical mandate. 91 Similarly, virtual representation, where the minority must be represented by another district's representative, is not an
adequate substitute for the actual representation of one's chosen
representative. 92 In some cases, the difficulty a given minority
86 Low-Beer, supra note 4, at 176 n.63 (quoting THOMAS HARE, A TREATISE ON
THE ELECTION OF REPRESENTATIVES, PARLIAMENTARY AND MUNICIPAL 19 (4th rev. ed.
1873)).
87 See supra note 53 (criticizing mobility as a solution to the problem of fixed
constituencies).
8 See 2 U.S.C. § 2c (1988) (requiring single-member districts for congressional
elections).
89 BACrIIOT, supra note 7, at 164 (defining "compulsory constituencies" as
constituencies created by the law).
90 See Davis v. Bandemer, 478 U.S. 109, 132 (1986) (White, J., plurality opinion)
(noting that "[a]n individual or a group of individuals who votes for a losing
candidate is usually deemed to be adequately represented by the winning candidate
and to have as much opportunity to influence that candidate as other voters in the
district").
91 See id. at 170 (PowelI,J., concurringin part and dissentingin part) (arguing that
"it defies political reality to suppose that members of a losing party have as much
political influence over state government as do members of the victorious party").
92 See e.g., United Jewish Orgs. v. Carey, 430 U.S. 144 (1977) (justifying an
1993]
PROPORTIONAL REPRESENTATION
2011
faces in electing representatives may be so extreme that there is no
representative available in any district, thus precluding even the
lessened input of virtual representation.
Liberated from fixed territorial constituencies, voters in a
proportional representation system may define their own constituencies based on self-identified communities of interest. With the new
freedom of "voluntary constituencies,"9 3 however, comes a new
responsibility. For example, Republicans in an industrial city would
have to exhibit the initiative and organization necessary to identify
people with similar interests outside of the city, form a group,
design a platform, and nominate a candidate representative of their
views. These new tasks will be well worth the effort, however: freed
from the constraints of the former compulsory constituency, the
voluntary constituency would be capable of returning a representa94
tive.
5. Changing the Face of Candidates and Campaigning
[Proportionalrepresentation]with the single transferable vote.., can
transform our legislative elections from contests to win all the spoils of
victoy for one group and keep otherpeople out to invitationsto all citizens
95
to come in and take part in a great cooperative democracy.
One result of an STV proportional representation system would
be the nomination and election of more minority and female candidates to the House of Representatives. 6 Under the current
affirmative racial gerrymander which consequently deprived the Hasidim of their
ability to elect a representative by suggesting that the distinctive interests of the
Hasidim may be "virtually represented" by white representatives in other districts);
see also Guinier, supra note 67, at 428-29 (criticizing the virtual representation of
African-Americans by sympathetic white officials and noting that because "blacks, as
a poor and historically oppressed group, are in greater need of government
sponsored programs and solicitude which whites often resent ...[a] white official will
not dependably consider black interests if [she] must also accommodate the more
dominant views of white constituents").
93 BAGEHOT, supra note 7, at 164-65 (defining "voluntary constituencies" as
constituencies that the law allows electors to create themselves).
94 See id. at 165 (claiming that although London was represented exclusively by
Whigs, under the voluntary system Tories can combine, create a constituency, and
return a member); see also Wright, supra note 41, at 127, 134 (claiming that proportional representation permits representation for all voters, while single-member
district, plurality rule allows representation only of the majority).
95 Hallett, supra note 38, at 125.
96 See Membership Letter, supra note 4, at 4 (noting that in 1989 the New York
City Community School Boards using STV proportional representation consisted of
54% women and 47% racial and ethnic minorities). See also AusTRALIA AT THE POLLS
128-29 (Howard R. Penniman ed., 1983) (noting that women's representation in the
2012
UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141: 1991
system, one seat is available for election per geographic district.
With only one seat available, parties limit the nomination of
candidates to an individual who is most assured of winning.
Minorities and women are risky nominees in comparison to the
history of electoral success demonstrated by white males. 97 In
1991, of the 535 members of Congress, white males numbered 465;
only thirty were women, twenty-five African-American, ten Hispanic,
98
and five Asian-American.
STV proportional representation systems, however, present atlarge contests in which several seats are available to which parties
may nominate multiple candidates. In Massachusetts, for instance,
with ten representatives, 99 a party may nominate ten or more
candidates. 10 0 With several candidates to select, it is in a party's
best interest to choose women and minorities in order to appeal
broadly to voters throughout the state. 10 1 Scholars have found,
for instance, that the presence of minority candidates increases
minority voter turnout. 10 2 No longer presented with the impossible task of finding a single candidate within each district who means
Australian Senate, which uses STV proportional representation, is significantly greater
than women's representation in the Australian House of Representatives, which uses
a single-member-district preferential system).
9
7See GUIDE TO CONGRESS, supra note 19, at 699 (noting that "Congress has been
dominated since its inception by middle-aged white men with backgrounds in law or
business").
98 See id. (noting that the number of Hispanic representatives in Congress would
be four times greater if it was in proportion to the Hispanic population, which
totalled 9% of the national population according to the 1990 census).
99 See id. at 741.
100 Unlike cumulative voting, a party need not worry about nominating too many
candidates and thereby splitting its vote among them. As long as party members
make their sequential votes for candidates within the party, the votes of a party
candidate who is unable to surpass the threshold amount needed for election will be
transferred to help elect another candidate within the party. In this respect, party
candidates will be competing amongst themselves. See infra notes 109-10 and
accompanying text.
101 See Lakeman, supra note 36, at 50 (claiming that the difference between
proportional representation and single-member district, plurality rule systems explains
why countries with the latter system, such as Great Britain and the United States,
usually have a much smaller percentage of female representatives than countries with
the former); see also Wilma Rule & Pippa Norris, Anglo and Minority Women's
Underrepresentationin Congress: Is the ElectoralSystem the Culprit?,in UNITED STATES
ELECTORAL SYSTEMS, supra note 32, at 41, 44 (explaining that "[g]enerally, the more
representatives per district, the more women are nominated and elected" and noting
that parliaments in Denmark, Norway, Finland, and Sweden, with seven to 13
members per district, are about one-third women).
102 See Guinier, supra note 67, at 423 n.134 (citing Bill Montague, The VotingRights
Act Today, A.B.A.J., Aug. 1988, at 52, 56).
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PROPORTIONAL REPRESENTATION
2013
all things to all people, a party under STV will nominate a diverse
group of candidates who together can represent something for
everyone.
Voters, in turn, may find expression of tl~eir true preferences in
the wide array of candidates possible under STVY.I 0
Unlike
single-member-district systems in which voters have at most two to
three viable candidates and policies from which to choose, STV
presents an opportunity for discrimination among a range of parties
and within each party's group of candidates; given the predicted
increase in the number and diversity of candidates in STV's at-large
election format, voters "may choose among tendencies, approaches,
or emphases within [a] party."1 04 To give one example, a fiscally
conservative, anti-abortion, female, Republican voter located in New
York's Fourteenth Congressional district during the 1992 election
only had one candidate from which to choose: Bill Green, a prochoice, pro-environment liberal Republican. 10 5
Under ST,
however, she would be likely to find a Republican candidate who
possesses the specific qualifications reflected in her political profile.
Out of more than thirty-one Republican candidates running for the
thirty-one House of Representatives seats in New York,1 0 6 it
would be highly probable that a fiscally conservative, anti-abortion,
female, Republican candidate would exist.
Whereas plurality rule systems tend to divide people, SIV
proportional representation is viewed as "a healing and unifying
force."10 7 The winner-take-all, single-member-district aspects of
the current system lead to extremely adversarial politics. In each
district, where only one seat is available, a candidate must endeavor
to "kill" her opponents. Rather than a constructive debate of the
issues, campaigning becomes personal, often deteriorating into
name-calling contests.
While it makes sense to try to eliminate the opposition in a
single-member-district contest where the competition is easily
definable and limited to one or two rivals, personal disparagement
103 See Richard S. Katz, The Single TransferableVote andProportionalRepresentation,
in CHOOSING AN ELECTORAL SYSTEM, supra note 1, at 135, 144.
104 Id. at 142.
105 SeeJoe Calderone, Green: How Green?, NEWSDAY, Oct. 21, 1992, at 25; ProChoice RepublicansAnnounce PlansforRepublican Convention, FEDERAL NEWS SERV.,July
28, 1992,
available in LEXIS, Nexis Library, FedNew file.
10
6 See GUIDE TO CONGRESS, supra note 19, at 741.
10 7
Lakeman, supra note 36, at 51 (quoting a member of the religious minority in
Ireland).
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
in a multiple-seat contest is ineffective.
In STV proportional
representation, every candidate running for one of a state's several
seats is an opponent of every other candidate. In an election in
Pennsylvania with its twenty-one seats in the House of Representatives,10 8 an individual candidate would have sixty-two opponents,
assuming conservatively that each of the two major parties and one
third party would nominate one candidate per seat. This constitutes
too great a number to research for blemishes in personal histories.
With so many adversaries, a candidate's energies and resources
would be better spent strengthening and advancing her platform
than attacking others.
10 9
The structure of STV may also serve to change incentives.
Because second and third choice votes may be crucial to a candidate's election, a candidate will be wary not to alienate voters who
rank her second or third by disparaging their first choice. If a voter
prefers candidate X first and candidate Y second, candidate Y may
jeopardize her position with such a voter by disparaging candidate
X, the voter's first choice. Because voters' preferred candidates will
vary, it is in a candidate's best interest not to disparage anyone,
allowing positive campaigning to prevail. 110
6. Eliminating "Divide and Conquer" Strategies and
the Need for Primaries
Single-transferable-vote proportional representation also avoids
the "divide and conquer" problem inherent in the current system. 1 1 In a largely minority district, two strong minority candidates can divide the ethnic vote, permitting a non-minority to win
with much less than the combined minority vote. 112 Under STV
proportional representation, a minority is not deprived of its
proportional voting strength when more candidates than are capable
108 See GUIDE TO CONGRESS, supra note 19, at 741.
109 See Lakeman, supra note 36, at 49 (noting that where a candidate only strives
to take her fair share of several seats, hostility is likely to be greatly diminished).
110 See Anderson, supra note 57, at 25 (surmising that in preferential voting
systems, "[b]ecause candidates may need votes transferred from eliminated candidates, they will not want to alienate other candidates' supporters").
. See Hallett, supra note 38, at 123-24 (describing the "divide and conquer"
problem as "the defeat of candidates who seem logical winners because of competition for their constituencies").
112 See id. at 124 (claiming that well-qualified candidates often refrain from
running to avoid becoming "spoilers").
PROPORTIONAL REPRESENTATION
2015
of being elected divide the minority vote. 118 As long as minority
voters designate other minority candidates as their second and third
choices, votes not needed to elect their preferred first choice are
transferred to other sequential minority choices. This process
minimizes the risk to a party'or minority of splitting its vote among
a number of candidates.
Because the transferable vote will select the candidates to
represent each party, party primaries themselves become unnecessary.1 14 Individuals of a certain party seeking a place on the
ballot would instead be nominated by public petition. While party
organizations could still indicate which candidates they favor by
placing the party emblem next to that candidate's name on the
ballot, they would no longer be able to screen candidates and
present only those perceived to be the safest. 115 Eliminating
primaries would give voters effective control over the nomination
of candidates, 116 and elections would truly exist for the electors.
C. Common Criticisms of ProportionalRepresentation
Of the common criticisms of the STV form of proportional
representation, many are either tangential or easily dismissed. Some
opponents, for instance, fear that political campaigns will become
more expensive under STV as candidates must pursue votes
throughout the state as opposed to being restricted to a singlemember district. 1 17 The at-large format, however, would present
a larger area for fundraising and more voters with which to spread
the costs. Minorities-valuing the increased opportunity to receive
representation that an STV system presents-may be willing to
contribute more. Campaign finance reform could also be sought as
11 See id. at 123-24.
114 See id. at 121-22 (referring to the elimination of primaries as a "great
advantage[]"). Party primaries serve two main purposes: to prevent a party from
splitting its vote among several candidates in the general election and to allow the
membership of a party to choose its representative. The transferable vote would
address only the first of these concerns. Parties may still want to hold primaries to
permit their members-and not the general electorate, as would be the case under
STV-to choose their candidates.
115 See Larry Rockefeller, Primariesare a Protection Racket, N.Y. TIMES, Sept. 15,
1992, at A27 (claiming that party primaries in New York are a "[p]rotection [r]acket
. rigged to protect incumbents and prevent choice").
lMoreover, voters would no longer be excluded from choosing a party's
candidate by virtue of registration as an independent or a member of the opposite
party.
117 See Richard H. Pildes, Gimme Five, NEW REPuBuc, Mar. 1, 1993, at 16, 17.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
a possible solution. Similarly, there is a fear of the unwieldiness of
too many candidates or parties. 118 Yet, this argument "betrays a
serious lack of faith in democracy itself," as the voters, and not the
electoral system, should determine how many choices are too
unwieldy. 119 The two criticisms traditionally aimed at proportional systems, however, are not so easily dismissed and require
thorough examination.
1.
Lack of a Clear Benchmark Defining Constituencies
and Unresponsiveness to Local Claims
In allowing representation based on interest, proportional
representation eliminates the use of geographic districts as a nexus
between representative and constituency. 120 Some claim that the
absence of such a bright-line demarcation deprives representatives
in a proportional representation system of any readily ascertainable
constituency. 12 1 Critics argue that because representatives are
unable to identify easily their constituencies, they will only have a
mandate for what is outlined in their platforms; in deciding issues
outside the platforms, representatives will be unable to consult their
122
constituents for support.
A closer look, however, reveals that these arguments must fail.
If minorities espousing distinctive views organize statewide to form
a party and elect a representative, that party would assuredly have
the incentive to monitor its representative's activities and keep her
apprised of its views. Although a proportional representation
system contains no outward, physical determinant of constituency,
it may provide something equally as clear-cohesive constituents
motivated by their collectively identified interests to enforce
118See Cossolotto, supra note 62, at 22.
119 Id. But see supra note 59 (discussing the unmanageability of at-large elections
in states such as Texas, New York, and California with more than 30 representatives).
120 See Arend Lijphart, ComparativePerspectiveson FairRepresentation: The Plurality-
Majority Rule, GeographicalDistricting and Alternative ElectoralArrangements, 9 POL'Y
STUD.J. 899, 912 (1981) (distinguishing the "clear link" between politician and polity
in the plurality rule, single-member-district system from the comparatively weak link
in the proportional representation system, especially where its electoral districts are
large).
121 See Schuck, supra note 15, at 1371. The geographically based district is also
a blunt instrument, however, creating constituencies which contain individuals who
voted for the representative as well as those who did not.
122 See id. at 1371-72 (claiming that representatives in a proportional representation system would be relatively unresponsive to local constituents, individual voters'
needs, and geographically localized claims).
PROPORTIONAL REPRESENTATION
2017
representational accountability. 12 As an additional response to
this criticism, lack of distinct geographic boundaries will encourage
constituency groups to endow their candidates with a thorough and
comprehensive platform to avoid future questions of an uncertain
mandate. 124 This criticism also relies on a narrow and misguided
view of the role of representatives as simply proxy holders for
constituents' interests. Representatives, however, are also elected
to make decisions using their independent judgment. Whether or
not a candidate is re-elected determines the accuracy or error of her
decisionmaking.
Because representatives are not tied to a specific district, it is
also suggested that local interests will be neglected. 125 While it
is true that certain localities have very distinctive interests requiring
individual representation, 126 voters in these areas may still form
their own local party to elect a representative who will protect those
interests. Voters may also look to their senators for the satisfaction
of local interests, since the Senate's role, in contrast to the House
of Representatives, is that of representing the states. 127 The only
123
See Guinier, supra note 72, at 1473 (M[I]nterest representation generates
incentives for community-based organizations to play a more active role in mobilizing
the electorate and monitoring the legislature . . ").
124 A concern related to that of the uncertain mandate is the question of the
practicalities of constituency service under proportional representation. Absent the
geographic boundaries of single-member districts, how will a representative know if
the individual requesting help is her constituent? What is to prevent certain
representatives from being overloaded by nonconstitutents?
One response is that a representative can generally presume that a constituent
will approach the candidate for whom she voted for service. Whereas currently up
to 49% or more of a constituency may be forced to seek assistance from a representative for whom it did not vote, under proportional representation constituents
can elect representatives in proportion to their numbers. Therefore, given this
opportunity, a constituent most likely will approach the representative she supported
for assistance rather than another representative whom she did not support.
The problem of some representatives receiving more of the constituency service
burden than others already exists under the current system. See GUIDE TO CONGRESS,
supra note 19, at 489 (noting that senior legislators "receive proportionately more
[constituent] casework than dojunior members"). If under proportional representation certain representatives receive a disproportionate amount of the constituency
service requests, the representatives of a state could set up a lottery system in which
every other phone call gets routed to a different representative.
125 See Schuck, supra note 15, at 1371-72.
126 See id.
127 See GUIDE TO CONGRESS, supra note 19, at 18, 738 (distinguishing between
senators and representatives by noting that "[r]epresentatives are not the property of
the states, as are the senators, but rather belong to the people who happen to reside
within the boundaries of those states"); Wesberry v. Sanders, 376 U.S. 1, 14 (1964)
(explaining that the Constitutional Convention agreed that the House ofRepresenta-
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UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141:1991
difference under proportional representation is that in those areas
where geography is not a proxy for interest and voter interest is
characterized instead by voluntary associations such as political
affiliations and alliances, voters may form constituencies around
those shared interests. These voters are thus also empowered to
elect a representative, rather than being prevented from doing so by
residence in a district where the majority does not share their views.
2. Proportionality Leads to Instability
Proportionality and stability are often viewed as competing
values which are mutually exclusive: 128 many commentators claim
that an electoral system is capable of either representing a wide
cross-section of the population or promoting effective government,
but not both. 129 Critics acknowledge that proportional representation can create "a consultative assembly which expresses all of a
country's nuances," but claim that the presence of so many parties
makes such a system inherently less stable.13 0 The absence of one
party large enough to constitute a permanent governing majority
creates a need for coalitions, which critics view as tenuous groupings of disparate and uncomfortably allied parties. Multi-party
Congresses rely on coalitions to constitute the majority necessary to
pass resolutions and in a parliamentary system to determine who
will be the executive. Plurality rule, some argue, forms a stable and
strong government through its two-party system, even if the two
parties do limit the representation of more diverse views.13 1 An
examination of these arguments reveals that they are unjustified in
both cases, as the stability of plurality rule is questionable and a
proportional representation system is capable of achieving both
13 2
stability and proportionality.
tives "was to represent the people as individuals"); see also Kent Jenkins Jr., CIA
Cancels its Decisive W. Va. Move, WASH. POST, Apr. 1, 1992, at Al (noting the
unsuccessful effort by Senator Robert Byrd of West Virginia to move two CIA
facilities to his home state, which would have created thousands ofjobs).
128 See Lijphart & Grofman, supra note 18, at 4; see also Cain, supra note 20, at 276
(claiming that the choice between more or less proportional systems represents a
tradeoff between the competing democratic concerns of legitimacy, stability, and
efficiency).
129 See, e.g., CHARLES E. MERRIAM, SYsTEMATIc PoLITIcs 149 (1945) (arguing that
representative governments are imperfect but still constitute the most effective
balance between the need for unified state policies and the existence of multiple
voices in a community).
130 Lijphart & Grofman, supra note 18, at 36.
I1 See id.
132 See Beale. subra note 4. at E2 (noting that the governments of Germany and
1993]
PROPORTIONAL REPRESENTATION
2019
Proponents credit the stability of the current plurality rule
1 3
system to its preservation and facilitation of two-party politics. 3
Because there are only two significant parties, one will always be
capable of establishing a clear governing majority in the legislative
body. This leads to stability because the majority party is in
consistent control of, and may be held accountable for, all issues
that break down along party lines. "A two-party system operates to
produce such coordinate goals as a clear governing majority,
governmental stability, and pin-pointing of governing responsibility.,
13 4
This stability may be a false one, however, as it is achieved and
maintained at the expense of "major losses of voting power for
significant numbers of the electorate." 1 5 Consistently submerged
in a single-member district and unable to voice its grievances
through the traditional channels of the political process, a cohesive
13 6
minority may resort to less desirable forms of expression.
Finding the majority unfairly constituted, minority and alternative
groups may not defer to its commands, resorting to civil disobedience and other means of expressing discontent.
In his dissent in City of Mobile v. Bolden, Justice Marshall warned
that the Court "cannot expect the victims of discrimination to
respect political channels of seeking redress" if they are unable to
receive adequate representation due to the Court's stringent
discriminatory intent standard of proof for a claim of minority vote
dilution.1 3 7 Justice Marshall also predicted that the "superficial
tranquility" created by the Bolden decision would be "shortlived."1" 8 The recent and historical rioting in underrepresented
American communities may confirm Justice Marshall's suspicions
Scandinavia, using proportional representation systems, are considered "the most
stable in the world").
133 See Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O'Connor, J., concurring)
("The preservation and health of our political institutions, state and federal, depends
to no small extent on the continued vitality of our two-party system, which permits
both stability and measured change.").
134 Congressional Anti.Gernymandering Act of 1979:
Hearings Before the Senate
Committee on GovernmentalAffairson S.596,96th Cong., 1st Sess. 223 (1979) (statement
of Professor Robert G. Dixon, Jr., Washington University School of Law).
"5 DIXON, supra note 10, at 49.
136 See Eisner, supra note 63, at 986-87 (noting the integral role of third parties in
encouraging the electoral participation of alienated voters, and thereby helping to
insure against "less acceptable forms of protest, such as civil disobedience or
withdrawal from the political process").
137 446 U.S. 55, 141 (1980).
138 id.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
and challenge the notion that the current electoral system is
conducive to true stability.
The Kerner Commission, created by PresidentJohnson to study
the perceptions and attitudes of African-Americans and whites in
fifteen major American cities following the racial disorder in
Newark, Detroit, Cincinnati, Boston, and Milwaukee during the
summer of 1967, reported a lack of political power in the AfricanAmerican community as a primary cause of the riots.18 9 The
riots, however diffuse and ill-focused, were described as acts of
political will by African-Americans "confronted with a political
system unresponsive to their demands [and] controlled by white
people." 140
As a possible remedial measure to deter future
rioting, the Commission advised that if African-Americans are given
a reason to participate in routine politics, "and if the system makes
it worthwhile for them to direct their energies into legitimate
channels, there is no reason to think that they will reject the
opportunity."141
On the twenty-fifth anniversary of the 1968
Kerner Commission study, however, a recent report by the Milton
S. Eisenhower Foundation finds that the conclusions of the Kerner
Commission are even more relevant today as many of the social ills
underlying the riots in the 1960s are those that motivated the riots
that reverberated throughout major American cities in April of
1992.142
Although proportional representation encourages the representation of minority and third parties in proportion to their vote share
and thereby provides a channel for discontent, critics argue it is
unstable because no one party will hold enough seats to comprise
a legislative majority, and coalitions will have to be formed. 14
Coalition government, by virtue of its tenuous composition of many
uncomfortably allied parties, is considered inherently unstable.
Coalitions, however, pose a significant threat to government stability
only in parliamentary systems, "where the executive is dependent on
139 NATIONAL ADVISORY COMM'N ON CIVIL DISORDERS, SUPPLEMENTAL STUDIES FOR
THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 5, 149 (1968).
140 Id. at 149.
141 Id.
142 See RonaldJ. Ostrow, New Report Echoes "Two Societies" Warning of 1968 Kerner
Commission, L.A. TIMES, Feb. 28, 1993, at A23; see also Steve Waldman, Support This
Plan, HOUSTON CHRON., Feb. 24, 1993, at C1I (describing the riots in response to the
Rodney King verdict as "violent eruptions rooted in frustration and despair" by
people with no hope or opportunity, and arguing such scenes will become
commonplace unless society responds in a meaningful way).
14s See Levinson, supra note 4, at 272.
1993]
PROPORTIONAL REPRESENTATION
2021
a legislative vote of confidence to act." 144 In the United States,
where the executive and legislative branches of government are
independent, the executive does not rely on the support of a stable
legislative coalition for its power. "Legislative coalitions can shift as
the legislature votes on different bills, while the executive remains
unchanged." 145 Furthermore, because the Senate will continue to
utilize the current electoral system which encourages two-party
politics, only the House of Representatives under proportional
representation with its proliferation of third parties can be expected
to be a hotbed of coalitions.
Critics also claim that though proportional representation
provides small and large parties with a proportionate share of
legislative seats, it fails to provide a proportionate share of governmental power. A small party capable of providing the key votes
necessary to form a majority coalition may exercise power far out of
proportion to its number of seats. 146 On the opposite extreme,
unpopular minority parties, with whom no one will ally, are divested
of practical power completely. 147 However, because legislative
144 Lijphart & Grofman, supra note 18, at 6 (citing Maurice Duverger); see also
PeterJ. Taylor, The Casefor roportionalTenure: A Defense ofthe BritishElectoralSystem,
in CHOOSING AN ELECTORAL SYSTEM, supra note 1, at 53, 57 (noting that in Holland,
Belgium, and Ireland, the government is shaped less by the election than by postelection party maneuvering, deal-making, and coalition-building, all of which take
place independent of voter control).
145 Low-Beer, supra note 4, at 185 n.100. In parliamentary systems, however, a
shift in the legislative coalition also causes a shift in the executive. See also Dave
Barry, Dave Bary's Year-End Review: A HumorousSlice of '92, DALLAs MORNING NEWS,
Jan. 1, 1993, at 10 (noting the rapidity with which control can be overturned in
parliamentary systems: "April 9-Great Britain elects an entire new government after
a campaign that took less time, total, than U.S. politicians will need, later in the year,
to agree on a debate format").
146 See Levinson, supra note 4, at 272 (noting that in Israel small religious parties
exercise a de facto veto over the national government because they can provide "the
key one or two votes necessary to give one voting bloc a majority of the 120 Knesset
seats").
14 7 See id. Characterizing the votes of supporters of parties excluded from the
governing coalition as essentially wasted votes, one commentator claims that
proportional representation does not eliminate vote wasting, it just alters the time
and form; although the number of wasted votes at the level of electing a representative is minimized, these same votes at the legislative level, as embodied by their
representative, are effectively wasted if the representative is unable to become part
of the governing majority. See Schuck, supra note 15, at 1371.
It is impossible, however, to eliminate wasted votes at the legislative level. Except
on limited issues requiring a supermajority, the House votes by majority rule. See
GUIDE TO CONGRESS, supra note 19, at 428. The issues which are decided pose yes/
no resolutions, and the results are incapable of being apportioned proportionately.
Whether or not a particular bill should be passed is a dichotomous decision, and 49%
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coalitions are constantly shifting depending upon the issue, a party
excluded from one coalition is likely to be included as part of
another. The flexibility of coalitions can thus counterbalance
disproportional power and prevent "potentially destabilizing
situations in which there are permanent policymaking winners and
losers." 148 It is unlikely, for instance, that the parties aligned to
form a majority coalition on the pro-choice issue will be the same
parties constituting a coalition to pass the President's budget
proposal.
Furthermore, the possibility that smaller groups may be able to
wield disproportionate legislative influence is not limited to
proportional representation systems but is endemic of any system
utilizing coalitions, including our present system.
Although
Congress is composed primarily of the two major parties, these
parties often divide into coalitions depending on the issue under
consideration. 149 The conservative coalition, a group of Republicans and Southern Democrats founded in the 1930s to weaken
President Roosevelt's New Deal proposals, continues to function on
150
major economic or social issues to block liberal legislation.
Similarly, a small group of pro-choice Republicans may be crucial in
providing Democrats with the majority necessary to pass the
Freedom of Choice Act and may thereby exert influence beyond
their percentage in Congress. The current system frequently relies
on coalition building to enact legislation; the House of Representatives under proportional representation would do so as well, while
incorporating more voices and expanding the debate.
11. IMPLEMENTING THE CHANGE TO
PROPORTIONAL REPRESENTATION
A. The Court as a CountermajoritarianInstitution
Two of the major constitutional roles of the Supreme Court are
to protect minorities against majorities and to facilitate minority
representation. 151
Footnote four of United States v. Carolene
of the representatives' votes necessarily will be wasted.
148 Cain, supra note 20, at 270.
149 See id. at 272 (claiming that unless one group is so dominant that it does not
require coalitional partners, the structure of politics creates pressure for coalitional
strategies).
150 See GUIDE TO CONGREss, supra note 19, at 535-36.
151 See JoHN H. ELY, DEMOCRACY AND DISTRUST 135-79 (1980).
1993]
PROPORTIONAL REPRESENTATION
2023
Products Co. 152 suggests the use of "searching judicial inquiry"
when there has been prejudice against discrete and insular minorities, curtailing the operation of "those political processes ordinarily
to be relied upon to protect minorities. 153 Fearing the abuse of
such a broad mandate, constitutional scholar John Ely devised a
representation-reinforcing theory of judicial review. Ely insists that
the Court "can appropriately concern itself only with questions of
participation, and not with the substantive merits of the political
choice under attack. " 15 He argues that the judiciary may intervene only to unblock stoppages in the political process that threaten
the legitimacy of the political process itself. 155
Even under Ely's narrower standard of review, the Supreme
Court should review the majoritarian bias of the current electoral
system with strict scrutiny. The consistent underrepresentation of
the minority in single-member districts due to the winner-take-all
156
system is a quintessential stoppage in the political process.
Because the minority in every district is unrepresented, the Court
can no longer presume that the legislature fairly represents all the
people, and it may intervene. 157 Though challenging an electoral
system that has existed for over 200 years may seem extraordinary,
the Court's voting rights jurisprudence arguably provides a basis for
this Comment's claim that the current electoral system for the
House of Representatives must be discarded.
The Supreme Court traditionally limits its review of voting rights
challenges to issues of formal equality and declines to create
substantive conceptions of political equality. 158 In its decisions in
gerrymandering and minority vote-dilution cases, however, the
Court has held that political and racial minorities have an equal
protection right to an undiluted, equally powerful vote. 159 Be152 304 U.S. 144 (1938).
13 Id. at 153 n.4.
154 ELY, supra note 151, at 181.
155 See id. at 117.
15 See id.; DIXON, supra note 10, at 56 (noting the tendency of the current system
"to produce nonproportional and irrational relationships between the degree of party
support in the electorate and the degree of actual party strength in the legislature").
57 Cf Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 628 (1969) (stating
that when a challenge to a statute is in effect a challenge to the basic assumption that
the institutions of state government are structured so as to represent fairly all the
people, "the assumption can no longer serve as the basis for presuming constitutional-
ity-).
158
See infra notes 244-49 and accompanying text.
159 See Davis v. Bandemer, 478 U.S. 109, 118-27 (1986) (holding that political
gerrymanderingisjusticiable under the Equal Protection Clause); White v. Regester,
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
cause the majoritarian bias of the underlying electoral system makes
it difficult for the Court to guarantee fully such a right, a change to
an electoral system based on STV proportional representation,
which allows the most effective use of the most votes, would seem
to be required.
B. Addressing Claims ofJudicialActivism
Critics claim that a proportional representation requirement
would transform the Court into a "super-legislature." 16° Little
"super-legislation" beyond the initial establishment of proportional
representation, however, would be necessary. 161 The one-time
intrusion of a court-imposed requirement of proportional representation would be no more unmanageable than was the imposition of
the one person, one vote standard twenty-nine years ago.1 62 Mak412 U.S. 755, 765-67 (1973) (holding that multimember district voting systems that
deny racial minorities equal opportunity to participate in the political process violate
the Equal Protection Clause and are therefore invalid); see also discussion infra part
III.B.
160 See, e.g., City of Mobile v. Bolden, 446 U.S. 55, 123 (Marshall, J., dissenting);
Low-Beer, supra note 4, at 184 (noting that proportional representation as a courtimposed remedy has been criticized as "too radical an intrusion into the province of
the legislature"); Schuck, supranote 15, at 1377 (arguing that a change to proportional representation should not be made by the Court because it is neither a representative nor conventionally accountable institution).
Critics ofjudicial activism in the realm of electoral systems claim that reform
should be sought through the legislature rather than the courts. Indeed, Article I, § 4
of the Constitution gives Congress the authority to prescribe the manner of elections.
See U.S. CONST. art. I, § 4. It is unlikely, however, that members of Congress, who
are overwhelmingly members of the two major parties, seesupranote 49, would adopt
a system of proportional representation that facilitates third party and minority
representation and would therefore jeopardize their two-party monopoly. Obviously,
congressional representatives would prefer to maintain an electoral system which
preserves their incumbency. See ELY, supranote 151, at 117 (noting that "voting cases
...
involve rights ...
whose dimensions cannot safely be left to our elected
representatives, who have an obvious vested interest in the status quo").
161 See Levinson, supra note 4, at 270-71.
162 See Wesberry v. Sanders, 376 U.S. 1, 7-8 (1962) (holding that "the command
of Art. I, § 2, that Representatives be chosen 'by the People of the several States'
means that as nearly as is practicable one man's vote in a congressional election is to
be worth as much as another's" (footnote omitted)); see also Reynolds v. Sims, 377
U.S. 533, 568 (1964) (holding that the Equal Protection Clause requires state
legislatures to apportion themselves by population).
The Court adopted the one person, one vote standard to correct the injustices
created by the prevalence of legislative districts of grossly divergent population size.
If, for example, each district in a state elected one representative, and district A
contained 700,000 people while district B contained only 100,000 people, the votes
of district B residents would have seven times the weight of those in district A in
1993]
PROPORTIONAL REPRESENTATION
2025
ing districts of equal population size a constitutional requirement,
the Court's one person, one vote standard was perceived as
revolutionary upon its pronouncement in 1964, "requir[ing] most
states to amend their constitutions and virtually every state to
reapportion."1 6 3 By 1965, however, all states at a minimum had
achieved partial compliance. 164 Today, the population equality
principle is a publicly accepted part of the political system. 165 In
time, proportional representation could also achieve such acceptance. Unlike the one person, one vote standard, however, which
must be revisited decennially in the wake of a census, proportional
representation need be implemented only once, as voters "redis16 6
trict" themselves at every election.
C. StructuralElectoral Change Under the CurrentSupreme Court:
An Unlikely Prospect
Given the current composition of the Supreme Court, the
prospects of a decision requiring the implementation of an STV
proportional representation system are bleak. A tension in the
voting rights jurisprudence of Justice White, the author of many of
the Court's opinions in this area, provides some insight into the
Court's apparent hostility to structural electoral change. In the area
of minority vote dilution, Justice White's opinions suggest a strong
commitment to ensuring minority voters an equal probability of
influencing election decisions. Writing for the Court in Whitcomb
v. Chavis,167 for instance, Justice White limited the devaluation of
minority groups' votes in multimember districts by holding that the
168
validity of such districts is justiciable.
determining who will be the representative. Similarly, citizens of district A do not
have a share of their representative equal to that of citizens of district B because
district A residents would have seven times as many constituents with whom to
compete for their representative's attention as residents in district B. Therefore, the
one person, one vote standard requires that state legislative districting provide
districts as equal in population size to other districts as is possible in order to
promote equal legislative representation of all citizens of all places within the state.
163 Low-Bcer, supra note 4, at 184 n.96; see CapitalIs Split On Apportioning, N.Y.
TIMES, Mar. 28, 1962, at Al (reporting that Senator Richard Russell of Georgia
termed the one person, one vote standard "another major assault on our constitutional system").
1 See Low-Beer, supra note 4, at 184 n.96 (citing DIXON, supra note 10, at 589633).
165 See Schuck, supra note 15, at 1327 n.19.
166 See Pildes, supra note 117, at 16.
167 403 U.S. 124 (1971).
16
8 See id. at 141-44. Although Justice White has been a strong advocate of
2026
UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141:1991
In the area of third-party ballot access, however, Justice White
applied minimum scrutiny to restrictions to ballot access for minor
parties, revealing his proclivity for the two-party system. In Munro
v. Socialist Workers Party,169 for example, Justice White upheld a
Washington statute requiring minor-party candidates to garner one
percent of all votes cast in the state's primary election as a prerequi170
site to having their name placed on the general election ballot.
The effect of this law was to exclude many minor-party candidates
from appearing on the general election ballot. Although the state
asserted that its interest was to avoid voter confusion, ballot
overcrowding, and the presence of frivolous candidacies, 171 the
patronizing nature of these interests, which derive from the premise
that voters are unable to comprehend multi-party contests, suggests
that the self-interest of the state was the true motivation behind the
measure. In his dissent, Justice Marshall opined that the purpose
advanced by the state was "the impermissible one of protecting the
major political parties from competition precisely when that
competition would be most meaningful."1 7 2
By providing strong protection for minorities in the minority
vote dilution context but not in the area of third-party ballot access,
Justice White's opinions manifest an incongruity that pervades the
Court's voting rights jurisprudence: minorities have the right to an
equally weighted vote, but only to the extent that result can be
achieved within the confines of the current two-party electoral
system. While acknowledging that the minority vote needs protection, the Court fails to recognize the impediments posed by the
system itself.
The Supreme Court is thus unlikely to hold that STV proportional representation is constitutionally required. This does not,
however, preclude the Court from finding that STV proportional
representation is constitutionally permissible. During the 1992
elections, fourteen states approved voter-initiated ballot measures
to limit the number of terms that senators and representatives can
serve in Congress. 173 By petition, voters may also place ballot
justiciability of vote-dilution claims, he has been extremely parsimonious when it
comes to finding such measures invalid. See id. at 144-63; White v. Regester, 412 U.S.
755, 761-64 (1973).
169 479 U.S. 189 (1986).
170 See id. at 199.
171 See id. at 194-95.
172 Id. at 205 (Marshall, J., dissenting).
17
3 See Congress Would Be Wise to Listen to Perot Supporters, Says U.S. Term Limits
PROPORTIONAL REPRESENTATION
2027
measures directly before the electorate concerning the adoption of
STV proportional representation within their respective states. The
Cincinnati City Council, for instance, voted to put a proportional
representation system on the ballot in May of 1993.174 Should
such initiatives be passed, the Court would be faced with the
question of whether the Constitution permits (not requires) the
states to establish their own electoral systems based on proportional
representation. According to Article 1, Section 4 of the Constitution, allowing states to determine "[t]he Times, Places and Manner
of holding Elections for Senators and Representatives," the answer
175
would appear to be yes.
Given the success of term limit initiatives during the 1992
elections, which enacted finite tenures for a quarter of the Senate
and almost a third of the House of Representatives, 176 ballot
measures may be a more realistic and practical way to initiate
structural electoral change to proportional representation. 177 A
constitutional requirement of proportional representation, however,
would still be the ideal. Ballot measures are piecemeal reforms that
may be overturned at every subsequent election. A constitutional
right applies throughout the fifty states 178 and is reversible only
by constitutional amendment or Supreme Court action defying stare
decisis.
Executive Director, PR NEWSWiRE, Mar. 2, 1993, available in LEXIS, Nexis Library,
Omni File.
174 See Cincinnatito Vote on New Elections Method, PLAIN DEALER, Feb. 23, 1993, at
5B.
17 5
U.S. CoNsT. art. I, § 4; see supra note 15 and accompanying text (noting that
the Constitution
does not mandate any particular electoral system).
17 6 See Robert Reinhold, The 1992 Elections: The States-The Ballot Issues, N.Y.
TIMEs, Nov. 4, 1992, at B7.
177 The only foreseeable impediment to voter-initiated proportional representation
is the congressional statute requiring single-member districts for congressional
elections. See 2 U.S.C. § 2c (1988). This impediment could be substantial, however,
given the presumption that congressional representatives are predisposed to the
current electoral system which preserves their incumbency. See supra note 160.
178 Although proportional representation is infeasible in the six states with only
one representative, the Court could require a single-member-district preferential
system of those states. See supra note 19.
2028
III.
UNIVERSITY OFPENNSYLVANIA LAWREVIEW [Vol. 141:1991
FINDING A REQUIREMENT OF PROPORTIONAL REPRESENTATION
IN THE SUPREME COURT JURISPRUDENCE:
A LESSON
IN READING BETWEEN THE LINES
Supreme Court jurisprudence in the voting rights area has been
described by one scholar as "the present muddle in our legal theory
of representation." 179 The majority of the doctrinal disarray
stems, however, from the Court's bestowal of a substantive right to
an undiluted vote on political and racial minorities without
appreciating the constraints of the winner-take-all, plurality rule
system. Despite the Court's efforts to achieve rough proportionality
within single-member districts, only a constitutional requirement of
an electoral system based on proportional representation could
resolve the inconsistencies underlying the present case law.
The Supreme Court's reliance on a two-tiered standard in the
apportionment and gerrymandering cases is based on an artificial
distinction between individual and group rights. The Court's need
for an artificial distinction reveals its inability to find judicially
manageable standards for defining the parameters of the substantive
political equality required by the Constitution. Moreover, the
Court's misinterpretation of the concept has led it to overlook
proportional representation as a potential standard. Ironically,
however, the Court in the gerrymandering cases appears to suggest
that the constitutional violation is the lack of a proportional election
result. Although it does not specifically provide a baseline against
which to measure whether the votes of the political minority have
been unconstitutionally diluted, the Court seems to compare the
group's current representation in the legislature to what it could
have achieved under a proportional plan. Yet the Court tries to
achieve this proportionality within the confines of the current
system, without recognizing its limitations.
The underlying
proportionality the Court seeks is impeded by the current system
and can only be achieved fully through a change to an electoral
system based on the STV form of proportional representation.
179 Levinson, supra note 4, at
261.
1993]
PROPORTIONAL REPRESENTATION
2029
A. The Artificial DistinctionBetween Individualand Group Rights:
Justifying Dfferent Levels of Protection
Contrasting the reapportionment cases with the gerrymandering
and minority vote dilution cases reveals the Court's preference for
majority rule at the expense of minority representation. Such
almost binary opposition of the two values mirrors the characteristics of the winner-take-all electoral system itself, which places
majority rule supremely over the minority who receives no representation. Because majority rule and minority representation cannot
both be fulfilled within a winner-take-all, plurality system, the Court
created a false distinction to establish a priority between the
two.18 0 The Court has held that the reapportionment cases
involved an individual right, whereas the gerrymandering and racial
vote dilution cases involved a group right. This two-tiered standard
allowed the Court to justify its stronger protection of the majoritarian value underlying the reapportionment cases as compared to the
minority representation value underlying the gerrymandering and
minority vote dilution cases.
1. The Reapportionment Cases Involve an "Individual" Right:
Preserving Majority Rule by Imposing
a Minimal Burden of Proof
181
The most noted reapportionment case, Reynolds v. Sims,
established the right to an equally weighted vote as an individual
right.1 82 But Reynolds also contained broad language suggesting
that the right to fair and effective representation extended to
everyone, including groups such as minorities. 183 Because of the
See Low-Beer, supra note 4, at 175.
377 U.S. 533 (1964).
See id. at 561 (describing the right to an equally weighted vote as "individual
and personal in nature").
For example, the Court stated that
each and every citizen has an inalienable right to full and effective
participation in the political processes of his State's legislative bodies. ....
Full and effective participation by all citizens in state government requires,
therefore, that each citizen have an equally effective voice in the election of
members of his state legislature ....
[T]he achieving of fair and effective representation for all citizens is...
the basic aim of legislative apportionment ....
Id. at 565-66. An individual can be claimed to have "an equally effective voice" in
determining election outcomes only to the extent that the group to which she belongs
is afforded the same opportunity to elect as other groups. See infra note 191 and
180
181
82
1
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
uncomfortable coexistence of the principle of majority rule and fair
and effective representation for minorities, Reynolds' progeny
ignored the language implicating a group right to minority
representation and focused instead only on the individual right to
1 84
majoritarian rule.
a. Kirkpatrick v. Preisler
185
In Kirkpatrick v. Preisler,
Justice Brennan interpreted the
requirement of Wesbery v. Sanders, that districts be "as nearly as
practicable"18 6 of equal population, to mean that districts must
achieve virtually exact "mathematical equality." 18 7 Such strict
application of the equal population principle illustrates that the only
right sought to be protected by the Court was an individual one.
The personal value of the right to an equally weighted vote is
diminished by permitting any deviations from equal population; a
voter in an overpopulated district will have a "smaller share" of her
representative than a voter in an underpopulated district, in which
fewer constituents will compete for the representative's attention.
This standard is effective only if, as Justice Brennan seems to
suggest, 188 the sole purpose of representation is the servicing of
18 9
individual constituents.
The reality, however, is that in addition to servicing individual
constituent's needs, a representative has a corollary function as a
accompanying text. Under the current system, however, a geographically concentrated group has a more effective voice in the election of representatives than a
geographically dispersed group. See also Low-Beer, supra note 4, at 179 (noting that
the Court in Reynolds "pointed beyond the equally weighted vote toward a conception
of euality that embraces.., protection for groups as well as for individuals").
I By requiring that districts be equal in population, the one person, one vote
standard developed in the reapportionment cases promotes majority rule. The
standard is intended to ensure that "a majority in the legislature will be elected from
districts comprising a majority of the population." See Low-Beer, supra note 4, at 166.
185394 U.S. 526 (1969).
'86 376 U.S. 1, 7-8 (1964) (noting that "as nearly as practicable one man's vote in
a conressional election is to be worth as much as another's").
8 Kirkpatrick, 394 U.S. at 530-31.
188
See id. at 531 (stating that "[e]qual representation for equal numbers of people
is a principle designed to prevent debasement of voting power and diminution of
access to elected representatives," and noting that "[t]oleration of even small
deviations detracts from these purposes").
189 See Low-Beer, supra note 4, at 177-78 n.68 (tracing to Benjamin Franklin,
Thomas Paine, and ThomasJefferson the origins of the peculiarly American tendency
to view representation as a personal relationship between constituent and representative).
PROPORTIONAL REPRESENTATION
2031
delegate in advocating her constituents' views before the House of
Representatives.'"
Yet a representative may only serve as a
delegate insofar as individual constituents share certain interests
with other individuals and form groups based on these shared
concerns.19 1 Because it is impossible to advocate the individual
interests of each constituent, a representative inevitably votes on
behalf of the collective interests of her constituents as embodied by
1 92
groups.
This group right to fair and effective representation is ignored
under the standard of one person, one vote. Because the Reynolds
majority intended the newly established individual constitutional
right to equal population to be primary to other considerations,1 95 historical, economic, and other group interests were
largely disregarded. In the cases surrounding application of the one
person, one vote standard to state legislative districts, the Court
upheld plans with reasonable variances from strict population
equality among districts, acknowledging the value of preserving
district lines which often represent the parameters defining certain
groups. 19 The cases addressing application of the one person,
190 See GUIDE TO CONGRESS, supra note 19, at 505.
191 See Low-Beer, supra note 4, at 177 (noting that "[n]o meaningful voting right
can be defined exclusively in individual terms"); see also Guinier, supra note 72, at
1460 ('The group is an appropriate unit for political participation because the 'right
to elect' is valueless at the level of the single individual." (footnote omitted)). An
individual cannot single-handedly elect a representative, but must collaborate with
other individuals around mutual interests and concerns to garner the support
necessary to achieve representation.
192 See Guinier, supra note 67, at 426 (noting that "[t]he franchise gives status to
the individual voter but derives its vitality from its exercise by a 'politically cohesive'
group of citizens who elect representatives to promote consideration of group
interests in public policy" (citation omitted)).
193 See Reynolds v. Sims, 377 U.S. 533, 567 (1964) ("Population is... the starting
point for consideration and the controlling criterion for judgment in legislative
apportionment controversies." (footnote omitted)).
194 In Mahan v. Howell, 410 U.S. 315 (1973), the Court allowed a 16.4% maximum
deviation from population equality, relying upon Reynolds's suggestion that "more
flexibility was constitutionally permissible with respect to state legislative reapportionment than in congressional redistricting." Id. at 321 (citingReynolds,377 U.S. at 578).
Rather than relying upon population as the sole factor in state legislative districting,
the Court considered the effective functioning of local government by recognizing the
representation of local subdivisions qua subdivisions. See id. at 325-28. Because local
subdivisions are functional polities at the state, but not the national level, the Court
pointed out that "[a]pplication of the 'absolute equality' test of Kirkpatrick and Wells
to state legislative redistricting may impair the normal functioning of state and local
governments." Id. at 323. Thus, while the rule ofKirkpatrickv. Preisleroften requires
sacrificing existingboundaries in order to achieve "absolute equality" in congressional
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141: 1991
one vote standard to congressionaldistricts, however, permit no such
flexibility; strict population equality is to be achieved regardless of
competing interests. In Kirkpatrick, Justice Brennan did not give
effect to Missouri's claim that variances from the requirement of
exact population equality "were necessary to avoid fragmenting
areas with distinct economic and social interests. 195 Because the
Court has interpreted the one person, one vote standard as the
"basic premise of the constitutional command," 196 population
variances of any sort, even those that relieve dilution of the effective
representation of groups, cannot be tolerated.
b. Karcher v. Daggett
97
In his dissent in Karcherv. Daggett,1
Justice White recognized
that the Court's fixation with the equal population principle as the
ultimate object not only ignored group interests, but in this case
actively encouraged the division of groups in the form of gerrymandering. 198 Applying the Kirkpatrick test in Karcher, the Court
struck down New Jersey's 1982 reapportionment1 99 of districts for
the House of Representatives. The reapportionment plan was
invalidated because the Republican plaintiffs proved that the
Democrats' plan was not the product of a good faith effort to
achieve population equality, and the defendant Democrats could not
prove that their plan's 0.6984% deviation from population equali20 1
ty2° ° was necessary to achieve some legitimate state objective.
districts, Mahan allows states to respect these boundaries when creating state
legislative districts.
195 394
196
U.S. at 533.
Id.
462 U.S. 725 (1983).
198 See id. at 776 n.12. (White, J, dissenting) ("'The emphasis on one-man, one197
vote not only permits gerrymandering, it encourages it.'" (quoting CONGRESSIONAL
QUARTERLY, STATE POLITICS AND REDISTRICTING 1-2 (1982))). Gerrymandering is "the
practice of drawing district lines so as to maximize the advantage of a political party
or interest group." GUIDE TO CONGRESS, supra note 19, at 746.
199 Reapportionment is the redistribution of the 435 House of Representatives
seats among the states after every decennial census to reflect shifts in population. For
instance, after the 1990 census, California gained seven new seats due to its
population expansion, seats that were taken from states like New York, Pennsylvania,
and Ohio, which experienced a relative population loss. See GUIDE TO CONGRESS,
supra note 19, at 745. Reapportionment is accomplished by redistricting, the
redrawing of congressional district boundaries within the states to achieve equal
population among districts after a population shift. See id. at 737.
200 See Karcher,462 U.S. at 727. To calculate the deviation, the Court used the
1980 census figure for New Jersey's population of 7,364,158. Assuming that each
19931
PROPORTIONAL REPRESENTATION
2033
Nevertheless, that the plan was a blatant and egregious gerrymander
by the Democrat-controlled state legislature 20 2 did not enter into
the majority's analysis.
Because the achievement of strict population equality was the
exclusive focus of the Court's inquiry, traditional boundaries and
political subdivisions could be subordinated to satisfy the Court's
essentially mathematical criterion.
Justice White noted that
apportionment plans will have to divide "community boundaries and
the grouping of constituencies with similar concerns" 205 because
it is often impossible to attain population equality without crossing
city, county, and township lines.20 4 In his concurrence, Justice
Stevens acknowledged that the broad origins of the one person, one
vote principle, which created high expectations for those desiring
an expansive view of political equality, had evolved into a narrow
conception of political equality, guaranteeing an individual right to
representation at the expense of a similar group right:
[M]ere numerical equality is not a sufficient guarantee of equal
representation.
Although it directly protects individuals, it
protects groups only indirectly at best. A voter may challenge an
apportionment scheme on the ground that it gives his vote less
weight than that of other voters; for that purpose it does not
matter whether the plaintiff is combined with or separated from
others who might share his group affiliation. It is plainly unrealistic to assume that a smaller numerical disparity will always produce
a fairer districting plan.... The major shortcoming of the
numerical standard is its failure to take account of... criteria
reapportionment plan would contain 14 congressional districts, the average
population per district is 526,059. The largest district of the Democrats' plan,
however, contained 527,472 people and the smallest contained 523,798. "The
difference between them was 3,674 people, or 0.6984% of the average district." See
id.
201 See id. at 728, 738, 740, 744.
202 See id. at 763-64 (Stevens,J, concurring) (noting that the challenged plan "was
designed to increase the number of Democrats, and to decrease the number of
Republicans, that New Jersey's voters would send to Congress in future years").
203 Id. at 776 (White, J, dissenting).
204 With the help of sophisticated computer programs, the party in power can
create an apportionment plan that achieves population equality and at the same time
maximizes its power by dividing clusters of the opposition. See id. (White, J.,
dissenting) (noting that "[w]ith ever more sophisticated computers, legislators can
draw countless plans for absolute population equality, but each having its own
political ramifications"); see also Wells v. Rockefeller, 394 U.S. 542, 551 (1969)
(Harlan,J., dissenting) (noting that "[a] computer may grind out district lines which
can totally frustrate the popular will on an overwhelming number of critical issues").
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141: 1991
relating to the fairness of group participation in the political
process. To that extent it may indeed be counterproductive. 2 0 5
2. The Gerrymandering and Minority Vote Dilution Cases
Involve a "Group" Right: Devaluing the Right to
Minority Representation with a Heavy Burden
of Proof
a. Bandemer and PartisanGerrymandering
Realizing that marginal deviations from equality of district size
are not the only threat to equality of representation, the Court in
Davis v. Bandemer26 found claims of partisan gerrymandering to
be justiciable. 20 7 Rather than acknowledging that both individual
and group rights are affected when a partisan gerrymander
20 8
advantages the majority party at the expense of the minority,
the Court continued its formulated disjunction between individual
and group rights. As compared to the individual right asserted in
the apportionment cases, the Court in Bandemer construed the right
at stake as a group right to minority representation. 20 9 To hold
justiciable the claim "that each political group in a State should have
the same chance to elect representatives of its choice as any other
political group," 210 the Court cited Reynolds's broad promise of
fair and effective representation for all citizens. 2 11 It is ironic
that the Court relied upon Reynolds's broad language to support its
vindication of group rights when it had strongly resisted such an
205 Karcher,462 U.S. at 752-53 (Stevens, J., concurring) (citation omitted).
206 478 U.S. 109 (1986).
207 See id. at 124. The Court had indicated its awareness of the existence of
political concerns in districting prior to 1986. In Gaffney v. Cummings, 412 U.S. 735
(1973), the Court suggested that requiring redistricters to ignore political data "may
produce, whether intended or not, the most grossly gerrymandered results; and...
it is most unlikely that the political impact of such a plan would remain undiscovered
by the time it was proposed or adopted, in which event the results would be both
known, and, if not changed, intended." Id. at 753. The Court also mentioned that
gerrymanders might be invalid if groups were invidiously fenced out of the political
process.
See id. at 754.
20
8 See Low-Beer, supra note 4, at 163 n.1 (defining gerrymandering as the
"dilution of votes through the denial of a meaningful vote to some voters and of fair
and effective representation to some groups").
209 See id. at 175.
210 Bandemer, 478 U.S. at 124.
211 See id. ("Reynolds surely indicates the justiciability of claims going to the
adequacy of representation in state legislatures.").
PROPORTIONAL REPRESENTATION
2035
interpretation in the apportionment cases and restricted such
language to support only a narrow individual right to equal
population.
This seemingly unusual renewal of interest in the protection of
group rights to representation becomes less extraordinary upon
closer examination of the degree of protection actually afforded
them. As compared to the minimal burden of proof in the
apportionment cases, in which a plaintiff need only provide
statistical evidence that the plan at issue does not achieve population equality and that a workable alternative plan exists, 2 12 a
minority asserting the group right to minority representation
encounters a far more onerous burden.
Under Bandemer, a plaintiff must prove intentional discrimination against an identifiable group as well as actual discriminatory
effect. 218 Although Justice White conceded that in the case of
partisan gerrymandering intentional discrimination "most likely" can
be inferred from the mere fact of redistricting, 2 14 proving discriminatory effect becomes a virtually insurmountable challenge.
The majority found the Equal Protection Clause to be offended
"only when the electoral system is arranged in a manner that will
consistently degrade.., a group of voters' influence on the political
process as a whole." 215 Justice White requires that the group of
voters be underrepresented statewide as opposed to within
individual districts based on his unrealistic assumption that
supporters of a losing candidate may be adequately represented by
the candidate elected to their district whom they did not support.2 16
Similarly suspect is Justice White's faith that supporters
of a losing candidate may also be virtually represented by a
representative elected to a different district who shares their
vieivs.2 17 Although the plan in Bandemer created several "safe"
districts for Republicans, Justice White did not consider them
212 See Kirkpatrick v. Preisler, 394 U.S. 526, 528-29 (1969) (noting that Missouri's
redistricting plan contained two districts which respectively were 3.13% above and
2.84% below the mathematical ideal of absolute population equality between districts
and that "the General Assembly had rejected a redistricting plan submitted to it which
provided for districts with smaller population variances among them").
213 See Bandemer, 478 U.S. at 127 (White, J., plurality opinion).
214 Id. at 128.
215 Id. at 132.
216 See id.; supra notes 9092 and accompanying text.
217 See Bandemer, 478 U.S. at 132 (White,J, plurality opinion); see alsosupra notes
90-92 and accompanying text.
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UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
sufficient to support a finding of statewide discrimination against
Democrats.2 18
In addition to the difficulty of establishing statewide loss of
influence, which is compounded by Justice White's broad view of
representation, plaintiffs seeking to vindicate their group right must
also prove "consistent degradation," meaning actual electoral
disadvantage continuing beyond the results of one or two elections. 219
By focusing on a single election, the plaintiffs in
Bandemerfailed to prove that the Republican's plan would continue
220
to relegate Democrats to a minority status in the future.
With such a high threshold of proof, it is virtually impossible to
succeed on a claim of partisan gerrymandering, and therefore the
group right to minority representation established in Bandemer is
illusory. 221 Underlying this illusion may be an assumption on the
part of the Court that political parties require protection only under
the most egregious circumstances.
For example, while the
Republicans' plan in Bandemer disadvantaged Democrats, such
imbalance would be "corrected" if Democrats regained control. In
her concurrence, Justice O'Connor explicitly operates under this
assumption, reasoning that partisan struggles through gerrymandering are bounded and therefore judicial intervention is unnecessary.222 This assumption reveals the Court's preference for the
two-party system. Though Democrats and Republicans may not
require protection due to the continually turning nature of the
political tide, minority and third parties are consistently and
unjustifiably shut out.
Because of the supreme protection it affords individual rights to
representation in the apportionment cases and the remedy it
218 See Bandemer, 478 U.S. at 136 (White, J., plurality opinion) (noting that
"[s]imply showing that there are multimember districts in the State and that those
districts are constructed so as to be safely Republican or Democratic in no way
bolsters the contention that there has been statewide discrimination against
Democratic voters").
219 Id. at 142-43.
220 See id. at 139-40 (noting that "[t]he mere lack of control of the General
Assembly after a single election does not rise to the requisite level [of a history of
disproportionate results]").
221 In the two major partisan gerrymandering cases following Bandemer, the
plaintiffs similarly were found unable to meet their substantial burden of proof. See
Badham v. Eu, 488 U.S. 1024 (1989); Republican Party v. Wilder, 774 F. Supp. 400
(W.D. Va. 1991).
222 See Bandemer, 478 U.S. at 145 (O'ConnorJ, concurring) ("The opportunity to
control the drawing of electoral boundaries through the legislative process of
apportionment is a critical and traditional part of politics in the United States.").
1993]
PROPORTIONAL REPRESENTATION
2037
created to achieve that protection, the Court must deny the
existence of an individual right in the gerrymandering cases. This
opposition of individual and group rights in the apportionment and
gerrymandering cases respectively, however, is disingenuous.
"Group rights are also individual rights and vice versa." 223 The
individual voting rights of each member of the disadvantaged
political group are abridged in the same manner that the individual
voting rights of residents of an overpopulated district are undervalued by giving each resident "less of" the representative. The Court,
however, apparently disagrees. Given the grossly divergent burdens
of proof in Reynolds and Bandemer, it is clear that the Court
perceives the diminution of a political group's voting power as
somehow less objectionable than population-based vote dilu224
tion.
b. Whitcomb and Bolden and Minority Vote Dilution
The indefensibility of the Court's individual/group right
distinction is amplified in the minority vote dilution context. In
Whitcomb v. Chavis,225 the Court broadened its concept of equality
of representation from an individual right of strict population
equality to include a group right of minority representation for
racial groups. Although structurally multimember districts often
provide perfect population equality, 226 Whitcomb held that an
Equal Protection Clause violation nonetheless could be found if the
voting strength of racial minority groups was submerged by the
multimember district.2 27 As in the gerrymandering cases, howevsupra note 4, at 175.
224 For a critical analysis of the Court's jurisprudence in this area, see Cain, supra
note 20, at 264 (suggesting that the Court has been motivated by the fact that "[i]t
is morally less complicated to ignore the group attributes of individuals and give them
only individual rights").
20 403 U.S. 124 (1971).
226 A multimember district, for instance, could encompass the entire state.
Because there are no other districts among which to equalize the population, the
multimember district would necessarily be equal in population.
227 See Whitcomb, 403 U.S. at 141-44. Justice White cited the broad underlying
principles in Reynolds to support this conclusion. See id. at 141-42 (citing Reynolds
v. Sims, 377 U.S. 533 (1964)). Applying the fair and effective representation standard
to racial minorities is especially appropriate given the fact that the Court in Reynolds
partially derived its 14th Amendment right to an equally effective vote from the 15th
Amendment's prohibition of denying voting rights on the basis of race. See Reynolds,
377 U.S. at 555 n.28, 557-58; see also id. 614-15 n.72 (Harlan, J., dissenting).
Tribe explained why multimember districts may be constitutionally suspect in
relation to racial minorities:
223Low-Beer,
2038
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
er, a closer examination of the circumstances of the cases reveals
the Court's fleeting commitment to the group right of minority
representation.
In Whitcomb, the Court denied the plaintiff's claim of minority
vote dilution because of insufficient evidence without providing any
guidance as to what would constitute sufficient evidence. Although
Justice White alluded that findings that African-Americans were
unable to register, vote, or choose and participate in political
parties, might have been helpful, 22s what evidentiary standards
were necessary to prove "that multimember districts are being used
invidiously to cancel out or minimize the voting strength of racial
groups" 229 was unclear. Plaintiffs seeking vindication of their
group right under Whitcomb were largely at the mercy of the Court.
Removing all ambiguity, Justice Stewart in City of Mobile v.
Bolden 230 established invidious purpose as the constitutional
standard for cases involving at-large vote dilution. In order to
support a claim, the plaintiff must prove that the plan for multimember districts was "'conceived or operated as [a] purposeful
device to further racial discrimination. ' "'21 Because proving the
subjective intent of lawmakers is the legal equivalent of finding the
Holy Grail, the minority-group right to protection against racial vote
dilution became a nominal right.
In order to support this result, Justice Stewart had to distinguish
multimember district dilution from population-based vote dilution,
which has no intent requirement. 2 32 Contrary to his dissent in
Lucas v. Fortyfourth General Assembly, 283 Justice Stewart's opinion
The "winner-take-all" character of the typical election scheme creates the
possibility that a specific majority will elect all of the representatives from
a multimember district whereas the outvoted minority might have been able
to elect some representatives if the multimember district had been broken
down into several single member districts.
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1075 (2d ed. 1988).
228 See Whitcomb, 403 U.S. at 149-50.
229 White v. Regester, 412 U.S. 755, 765 (1973) (citing Whitcomb).
230 446 U.S. 55 (1980).
231 Id. at 66 (quoting Whitcomb, 403 U.S. at 149).
232 See James Blacksher & Larry Menefee, At-Large Elections and One Person, One
Vote: The Searchfor the Meaningof Racial Vote Dilution, in MINORITY VOTE DILUTION,
supra note 7, at 203, 217-18.
233 377 U.S. 713, 744-65 (1964) (Stewart, J., dissenting). Justice Stewart believed
legislative apportionment was too complex a task to be achieved only by "the
uncritical, simplistic, and heavy-handed application of sixth-grade arithmetic." Id. at
750. Stewart envisioned apportionment as "a process ofaccommodatinggroup interests" intended "to insure effective representation in the State's legislature... of the
PROPORTIONAL REPRESENTATION
2039
in Bolden limited the scope of Reynolds to an individual right to one
person, one vote so as to distinguish it from the purported group
right of Bolden.2m The following example, however, illustrates
why the segregation of individual and group rights is insupportable:
If members of a geographically concentrated, cohesive racial group
find themselves split into voting minorities among several election
districts, each will suffer inequality of his or her voting strength,
and the Stevens-Stewart distinction between individual and group
rights cannot explain why he or she ought to be required to
advance, additionally, proof that the apportionment-makers
intended to accomplish this dilution.23 5
Structuring its apportionment, gerrymandering, and minority
vote dilution jurisprudence according to this two-tiered standard,
the Court has made the equal population guarantee of majority
control its paramount constitutional concern. 2s6 The Court
confined its strict judicial scrutiny to claims of population-based
voting dilution, while other forms of underrepresentation, such as
racially and politically based abridgement of voting strength, have
been subject only to deferential standards such as invidious
intent 23 7 and "actual discriminatory effect."23 8 By holding the
one person, one vote rule, which is not explicitly required by the
Constitution but was extrapolated largely from the Fifteenth
Amendment, to be a more fundamental constitutional right than the
right to be free from racial vote dilution, the Court has miscon23 9
strued the Constitution's priorities.
various groups and interests making up the electorate." Id. at 749.
234 See Bolden, 446 U.S. at 77 (noting that Reynolds "confers a substantive right to
participate in elections on an equal basis with other qualified voters" but finding that
this right "does not protect any 'political group,' however defined, from electoral
defeat").
235 Blacksher & Menefee, supra note 232, at 229.
2 See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 166 (1971) (Harlan,J., concurring
in the judgment) (claiming that the reapportionment cases "can be best understood
... as reflections of deep personal commitments by some members of the Court to
the principles
of pure majoritarian democracy").
3
7 In the 1982 Amendments to the Voting Rights Act, Congress codified the
"results" test from White v. Regester for racial vote dilution cases in order to escape
the burden of Bolden's intent standard. See S. REP. No. 417, 97th Cong., 2d Sess. 2,
27 (1982).
238 Davis v. Bandemer, 478 U.S. 109, 127 (1986) (White, J., plurality opinion).
29
See, e.g., Blacksher & Menefee, supra note 232, at 204 ("A review of the
evolution of the Reynolds doctrine as it affected racial minorities suggests that
constitutional priorities have been misplaced by the Court's inability to discover
judicially manageable standards for multimember-district vote dilution.").
2040
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
As opposed to this mutually exclusive resolution of the conflict
between majority rule and minority representation, a system of
proportional representation could accommodate both values.
Although the election contests themselves would not involve
majority rule, as each representative need only attain her proportional threshold, a group constituting a majority of the state would
still receive a majority of the seats. Similarly, the ultimate decisionmaking of Congress would continue to utilize majority rule.
Proportional representation thus compromises the use of majority
rule in the election contests in order to accommodate and further
the goal of minority representation.
3. An Alternative Explanation for the Distinction: The
Perceived Lack of Judicially Manageable Standards
The seemingly capricious distinction between individual and
group rights is perhaps better explained as an unwillingness on the
part of the Court to make substantive judgments about political
equality, preferring instead to limit itself to formal and easily
definable concepts of representation. 240
The Court's conserva-
tism in substantively defining the contours of political equality stems
2 41
from Baker v. Carr,
the first case to intervene in the political
thicket. The Baker Court cautioned against deciding a "political"
question without "judicially discoverable and manageable standards
242
for resolving it."
It is true that the simplicity of the one person, one vote standard
increases judicial manageability. A court need only examine the
statistical evidence to determine whether there has been a violation.
Defining and enforcing representational fairness for parties and
minority groups, however, did not prove so easily manageable.
Unlike the one person, one vote standard, the Court could find no
bright-line test to differentiate a legitimate districting plan from
Bandemer's partisan gerrymander or White's unconstitutional
minority vote dilution. The Court's inability to articulate ajudicially
manageable standard of representational fairness for groups may
account for its undervaluation of the group right to minority
240 See Dean Alfange,Jr., Gerymanderingandthe Constitution: Into the Thorns of the
Thicket at Last, 1986 SuP. CT. REv. 175, 257 (arguing that the Court should abandon
simple mathematical tests and squarely face the complex issues of fair representation).
V41369 U.S. 186 (1962).
242 Id. at 217.
1993]
PROPORTIONAL REPRESENTATION
2041
representation in the gerrymandering and minority vote dilution
2 43
cases.
B. A Foray into Substantive Fairness: Attempting
to Delimit the Right to an Undiluted Vote
Although critics of the Court's voting rights jurisprudence claim
that "the Constitution requires some measure of substantive fairness
beyond [the current emphasis on] formal equality," 244 the Court
has avoided substantive decisions as to the comparative influence of
certain groups. 245 The Court's formalistic focus on the inputs of
the electoral process, such as the eligibility to vote and the equal
weighting of votes, denotes a narrow vision of the political equality
at the heart of the Constitution. "[T]he duty of representation that
24
3 The
Court's preoccupation with judicially manageable standards, however,
appears to be misplaced. In establishing the new fundamental constitutional right of
one person, one vote, the Reynolds majority based its holding on a much broader
principle than population equality, defining the denial of equal representation as the
undervaluation of citizens' voting power "by any method or means" and "'no matter
what their form.'" Reynolds v. Sims, 377 U.S. 533, 563 & n.40 (1964) (quoting
Colgrove v. Green, 328 U.S. 549, 569-71 (1946) (Black,J., dissenting)). However, as
the broad concept of one person, one vote was applied and translated in subsequent
cases, it was simplified into a narrow standard, often producing ridiculous results.
Particularly in its application to congressional legislative deviations, the one person,
one vote standard is "sometimes applied with Procrustean rigidity today." Schuck,
supra note 15, at 1343. Despite the qualification that "[m]athematical exactness or
precision is hardly a workable constitutional requirement," Reynold&, 377 U.S. at 577,
Kirkpatrick interpreted the one person, one vote standard to require a good faith
effort to achieve zero deviation and denied a de minimis fixed standard. See
Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969). Karcher produced the absurd
result of overturning Kirkpatrick as the 0.69% deviation approved in Kirkpatrick on
remand was disallowed in Karcher. See Karcher v. Daggett, 462 U.S. 725, 744 (1983).
In his dissent, Justice White criticized the Karcher majority's application of one
person, one vote at the expense of the political minorities disadvantaged by
gerrymandering. See id. at 765.83 (White,J., dissenting). Justice White wrote that "no
one can seriously contend that such an inflexible insistence upon mathematical
exactness will serve to promote 'fair and effective representation.' ... Such sterile
and mechanistic application only brings the principle of 'one man, one vote' into
disrepute." Id. at 774 (WhiteJ, dissenting). One critic has summarized the Court's
penchant for focusing on thejudicially manageable standard of one person, one vote
to the exclusion of its ultimate goals by describing the Justices as little boys who
learned to spell banana and did not know when to stop. Lani Guinier, Remarks in
Law and the Political Process Seminar, in Philadelphia (Oct. 1992).
244 Levinson, supra note 4, at 279.
245 See Ackerman, supra note 10, at 716 n.4 (describing the Court in the
reapportionment cases as "extremely hesitant about moving beyond formal equality
to more substantive conceptions of democratic power-sharing"); cf. ELY, supra note
151, at 135 (noting that "the Court's role in protecting minorities should [not be
limited to] removing barriers to their participation in the political process").
2042
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
lies at the core of our system requires more than a voice and a
vote." 246 It is the output of the electoral process, such as the
ability of groups within the political process to achieve actual
representation within the legislature, that ensures substantive
political equality. 24 7 By assuring individuals formal access to the
ballot without regard to the influence their votes may have on the
election or within the legislature, 248 the Court concludes its
inquiry into political equality before it even begins. 249 Although
Reynolds ensures that legislators will be elected by, and represent,
citizens in districts of substantially equal size, it does not attempt to
inquire whether-in terms of how the legislature actually functionsthe districts have equal power to affect legislative outcomes. The
Reynolds one person, one vote standard also does not protect voters'
ability to cast a decisive vote.
1. Avoiding a Clear Definition of Substantive Political
Equality While Denying the Possibility
of Proportional Representation
Because voters are not fairly represented when their ability to
elect legislators is inhibited by a partisan gerrymander or a
multimember district, the gerrymandering and minority vote
dilution cases presented an opportunity to determine substantively
what constitutionally mandated, fair representation entails.
Nevertheless, the Court carefully avoided a clear definition of the
substantive right at issue. In White, the Justices employed the
246 ELY, supra note 151, at 135.
247 See Guinier, supra note 82, at 288 (recommending an extension of the Court's
focus "from opportunities to vote on election day to issues of legislative decisionmaking for politically marginalized groups" in order to move toward realization of
political equality).
248 In his concurrence in Bolden, Justice Stevens explicitly advocated this
separation. See City of Mobile v. Bolden, 446 U.S. 55, 83 (1980) (Stevens, J.,
concurring). Stevens believed vote dilution could be cleanly divided into two
categories governed by different constitutional standards: "[T]here is a fundamental
distinction between state action that inhibits an individual's right to vote and state
action that affects the political strength of various groups that compete for leadership
in a democratically governed community." Id. (Stevens,J., concurring). The former
would require strict judicial scrutiny, while the latter would not. See id. at 83-85
(Stevens, J., concurring).
249 See e.g., Garza v. County of Los Angeles Bd. ofSupervisors, 918 F.2d 763, 783
(9th Cir. 1990) (Kozinski,J., concurring in part and dissenting in part) (claiming that
of the two strands in the Court's jurisprudence, the Court's concern for the formal
right to electoral equality is "akin to protecting freedom of speech" while its support
for the substantive right of equal representation has been "far more conditional").
1993]
PROPORTIONAL REPRESENTATION
2043
nebulous "totality of the circumstances"2 test in order to evade
systematic analysis of the minority vote dilution phenomenon. The
three preconditions announced in Thoraburg v. Gingles provided
only a process-based rather than a substantive measure of minority
vote dilution. 25 1 In Bandemer, the Court failed to elucidate the
meaning of the crucial baseline of electoral performance necessary
to prove the "consistent[] degrad[ation of a] voter's or a group of
voters' influence" statewide. 25 2 Offering no further clarification
of its standards, the Court in White, Gingles, and Bandemer explicitly
and repeatedly rejected proportional representation as the substantive right underlying these cases. However, the Court "doth protest
too much," 255 as a closer examination of the standard hidden
beneath the ambiguity will reveal a requirement of rough propor254
tionality as the measure and remedy of vote dilution.
2. A Case of Mistaken Identity: Misinterpreting the
Concept of Proportional Representation
The Court's many protestations against proportional representation largely stem from its misconception of the term. The Justices'
disclaimers regarding proportional representation refer to the use
of proportionality as a means of measuring the absence of discrimination within the present single-member and multimember districts,
and not to proportional representation as an alternative electoral
system. 255 Using this peculiarly American variant of proportional
representation, the Court believes that requiring a right to proportionality would entail providing representation to a group in
proportion to their numbers within the population, 256 which
250 White v. Regester, 412 U.S. 755, 769 (1975).
251 See 478 U.S. 30, 77-79 (1986); see also Guinier, supra note 82, at 292 ("[T]he
[Voting Rights Act] must use a substantive measure of political equality, not merely
a process-based measure of minority group protections and access."); infra part
III.B.3.b. (discussing and distinguishing Gingles as a Voting Rights Act case).
252
See Davis v. Bandemer, 478 U.S. 109, 142-43 (1986) (White, J., plurality
opinion).
25 WILLIAM SHAKESPEARE, HAMLET act 3, sc.1.
254 See discussion infra part III.B.3.a.i.
05 See Low-Beer, supra note 4, at 164 n.4.
2 See Davis v. Bandemer, 478 U.S. 109, 130 (1986) (u[W]e cannot hold that such
a reapportionment law would violate the Equal Protection Clause because the voters
in the losing party do not have representation in the legislature in proportion to the
statewide vote received by their party candidates."). In conjunction with passing the
1982 Amendments to the Voting Rights Act, Congress was careful to add the
following disclaimer: "[N]othing in this section establishes a right to have members
2044
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
bears a striking resemblance to the racial quotas disallowed in
affirmative action. 257 This supposition, however, reveals the Court's
reliance on descriptive representation as the type of representation
necessary to remedy a minority group's vote dilution. 258 As a
requirement of "like bodies, not like minds," descriptive representation considers a minority adequately represented if the candidate
259
elected reflects the demographics of the minority community.
Therefore, African-Americans could only be adequately represented
by a number of African-American representatives commensurate
with their percentage of the population.
Proportional representation in its classic view as an electoral
system would avoid the Court's narrow view of descriptive representation by providing for broader "interest representation." 260 The
at-large aspect of proportional representation allows voters to
identify themselves with each other based on a consensus of shared
interests as opposed to physical attributes. Although the organization along shared interests may often coincide with physical
characteristics, such as race, because racial minorities share many of
the same concerns, this does not have to be the case. 26 1 Indigent
African-Americans, for instance, may prefer organizing with
indigent Hispanics and Asian-Americans to collaborating with
middle- and upper-class African-Americans who do not share their
of a protected class elected in numbers equal to their proportion in the population."
See 42
U.S.C. § 1973(b) (1988).
257
See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (rejecting the
University of California's use of explicit racial classification in its special admissions
program and preferring a plan like Harvard's where race is but one of many factors
considered). The Court believes that using proportionality as a measure of fairness
within the gerrymandering cases and as a measure of undilution within the Voting
Rights Act cases would require it to enforce political and racial quotas. See also
Schuck, supra note 15, at 1364 (noting the chilling prospect of the Court prescribing
the partisan configuration of the legislature); Still, supra note 7, at 263 (attributing
the courts' bias against claims of a right to proportional representation to their
misinterpretation of proportional representation as a quota system, requiring racial
or ethnic balance in elective bodies).
258 See Wright v. Rockefeller, 376 U.S. 52, 66-67 (1964) (Douglas, J., dissenting)
(criticizing the majority's acceptance of "racial electoral registers," which are electoral
districts affirmatively drawn by the government along racial lines).
259 Guinier, supra note 82, at 285-86.
260 Guinier, supra note 72, at 1462 (coining the term "interest representation" to
describe group identification based on an evaluation of shared interests).
261 See Georgia A. Persons, ElectingMinorities and Women to Congress, in UNITED
STATES ELECTORAL SYSTEMS, supra note 32, at 15, 16 (noting that because individuals
of Hispanic origins may be of any race, "experiences of discrimination are not as
widely shared among members of the group, and self-identification with a minority
status is not as widely shared within the group in politically significant ways").
PROPORTIONAL REPRESENTATION
2045
interest in the betterment of social services. While proportional
representation provides racial minorities with the opportunity to
elect representatives in proportion to their numbers within the
state's population, there is no expectation that they do so. A
proportional representation system thereby allows for "proportionate interest representation" and does not require the "proportionate, descriptive representation" that implicates the Court's distaste
262
for affirmative action and quotas.
3. Requiring Its Own Form of Proportionality: Ignoring the
Constraints of the Current Electoral System
A paradoxof the one man, one vote, revolution is that we now perceive our
goal to be something approachinga proportionalresult, in terms ofgroup
access to the legislative process, while retainingthe district method of
election. But the district method itself, when combined with straight
263
plurality election, is the source of many problems.
Because of its misconstrued concept of proportional representation, the Court was unable to recognize proportional representation
in its classical sense as the substantive view of political equality
required by the Constitution. The Court instead was forced to
resort to terms like "fair" in Reynolds,2 6 and "dilution" in
Gingles, 265 to accomplish this result. 2 66 Bandemer and Gingles
reflect the Court's attempts to provide proportional representation
within the confines of single-member districts without appreciating
the impediments which the current system imposes. Viewing
winner-take-all, plurality rule as sacrosanct, and succumbing to the
traditional American hyperbole regarding the negative effects of
proportional representation,2 67 the Court did not even consider
262
Lani Guinier, The Representation of Minority Interests: The Question of Single
Member Districts, 14 CARDOZO L. REv. 1135, 1154 n.70 (1993) (noting that the
statutory disclaimer against proportional representation in the Voting Rights Act
"only disavows the right to elect members of the protected group in proportion to their
numbers" and "does not disavow a principle of proportional representation that
measures proportionality by the empowerment norm [allowing minority group voters
to vote according to shared interests rather than physical characteristics]").
265 Lijphart, supra note 120, at 910 (quoting Robert G. Dixon,Jr., The Cour, the
People and "OneMan, One Vote, * in REAPPORTIONMENT IN THE 1970s 7,13 (Nelson W.
Polsby ed., 1971)).
264 377 U.S. 533, 565 (1964).
265 478 U.S. 30, 74 (1986).
266 See Cain, supra note 20, at 263 (stating that "Americans prefer to use terms
such as fairness and nondilution of minority votes without explicitly defining them,
which causes significant confusion because electoral fairness could in fact mean
something
other than proportionality").
267
See Matthew Cossolotto, Proportional Voting Didn't Corrupt Italy, N.Y. TIMEs,
2046
UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:1991
that a proportional representation electoral system might best
accomplish its stated constitutional goals. 26
a. Bandemer: Looking Beneath the Ambiguity
i. Proportional Representation is the Baseline for Measuring
Undilution
In Bandemer, the Court interpreted Reynolds's right of "fair and
effective" representation to include a broad right to an undiluted
vote for political minority groups disadvantaged by partisan
gerrymandering. 269 While the Court constructed a standard for
measuring a violation of this right, it did not explain what the
crucial baseline for measuring claims entails. As Justice O'Connor
noted in her concurrence, in order to determine whether and to
what extent a districting plan "will consistently degrade.., a group
of voters' influence on the political process as a whole," 2 70 a court
must compare a political group's share of the electorate to its postgerrymander share of representatives in the legislature: "Absent any
such norm, the inquiry the plurality proposes would be so standardless as to make the adjudication of political gerrymandering claims
impossible." 27 1 Though the Court disclaimed any intention of
making proportional representation the baseline, 272 it did not
adequately define an alternative standard.273
Mar. 14, 1993, at E16 (criticizing the New York Times's depiction of proportional
representation in Italy as contributing to the corruption of Italy's political parties).
268 See Lijphartsupranote 120, at 910 (arguing that "proportional representation
'may be the only way of making good on "one man-one vote" if that is interpreted:
"one man, one vote, each vote to be as effective a vote as possible"'" (quoting DIXON,
supra note 10, at 525)).
269 See Davis v. Bandemer, 478 U.S. 109, 119 (1986). Gerrymandering will have
the effect of diluting the voting strength of concentrated, similarly affiliated groups
of voters, by enacting a new apportionment plan under which district lines divide
these communities.
270 Id. at 110.
271 Id. at 156 (O'Connor, J., concurring).
272 This disclaimer was based on the Court's misperception of proportionality as
requiring descriptive representation and political quotas: "Our cases ... dearly
foreclose any claim that the Constitution requires proportional representation or that
legislatures in reapportionment must draw district lines to come as near as possible
to allocating seats... in proportion to what... [the parties'] anticipated statewide
vote will be." Id. at 130 (White, J., plurality opinion).
27
Id. at 171 & n.10 (Powell, J., concurring in part and dissenting in part)
(criticizing plurality for "its failure to enunciate any standard that affords guidance
to legislatures and courts").
1993]
PROPORTIONAL REPRESENTATION
2047
Having entered this area of substantive political equality and
recognized a right to undilution, the Court, under Baker, must
provide some "judicially discoverable and manageable standards for
resolving it."274 In partisan gerrymandering cases, the only
judicially manageable standard and remedy available is classic
proportional representation. 275 "Unlike the apportionment problem . . . , the gerrymandering problem cannot be satisfactorily
resolved within a geographically districted system." 276 Given
single-member districts and the winner-take-all rule, it is impossible
for all groups to be represented proportionately; therefore, all
drawing of district lines will advantage one group and disadvantage
another. As there is no feasible way to district objectively, any
reapportionment plan that the Court might establish as a baseline
will necessarily entail political valuations. 27 7 Given that all political parties are protected by the Equal Protection Clause, 278 there
appears to be no equitable means for the Court to choose among
them. Any action the Court might take could lead to an unconstitutional dilution of voting strength. 7 9
274 Baker v. Carr, 369 U.S. 186, 217 (1962).
275
See Schuck, supra note 15, at 1377 (describing the Bandemer Court's decision
to make partisan gerrymandering claims justiciable as "a reckless gamble propelling
the Court (and us with it) down a path whose destination is proportional representation"); see also Levinson, supra note 4, at 281 (arguing that judicial intervention into
the area of gerrymandering requires analysis of substantive fairness of representation
which will delegitimize the current presidential and congressional electoral systems
and require reform of the representation system).
276 Low-Beer, supra note 4, at 173.
2" See DIXON, supra note 10, at 56 (claiming that all districting decisions "whether
made by design or by chance, will have a crucial but arbitrary political effect").
278 Even the Court's principled means of districting on behalf of traditionally
oppressed minorities has produced controversial results. See UnitedJewish Orgs. v.
Carey, 430 U.S. 144, 152 (1977) (upholding creation of a "safe" district for AfricanAmericans that decreased the ability of a distinct Hasidic community to elect
representatives).
279
See Davis v. Bandemer, 478 U.S. 109, 147 (1986) (O'Connor,J., concurring)
(noting that the Court's extension of a constitutional right to minority undilution to
the two major parties allows "members of every identifiable group that possesses
distinctive interests and tends to vote on the basis of those interests" the ability to
bring claims, thus rendering the Court's standard litigious and unmanageable).
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ii. Proportional Representation as a Judicially Manageable
Standard with STV Proportional Representation as the Remedy
Proportional representation presents the only clean resolution
of the Court's predicament. Because any group so desiring may
vote cohesively, proportional representation eliminates the need for
courts to make race-conscious judgments about which minority
groups deserve distinct protection.
Requiring proportional
representation as an electoral system also solves the problems of the
29s
partisan gerrymander, as geographic districts become obsolete.
Consisting of one at-large district objectively defined by the
boundaries of the state, 281 proportional representation destroys
the opportunity for self-interested majority-party legislators to
manipulate district lines. All parties with support sufficient to
surpass the threshold of representation (determined by the Droop
formula) would be represented under STV proportional representation, in which the minimum number of minority votes would be
wasted. After its initial establishment of STV proportional representation as a remedy, the Court can rely on the structure of a
proportional representation system to guarantee political groups an
equally meaningful, undiluted vote. 282 Unlike the highly ambiguous and litigious standard of Bandemer28 3 therefore, proportional
representation provides a judicially manageable baseline and
concomitant remedy.
280 Districts might still have to be used, however, in states with larger delegations,
such as California, Texas, and New York. See supra note 59.
281 Unlike district boundaries, the state boundaries are objective as Article I, § 2
of the Constitution requires that representatives be chosen from within each state,
and state boundaries typically do not change.
282 Because proportional representation weights each vote equally regardless of
where it is cast, the structure of a proportional representation system also guarantees
the right to an equally weighted vote. The at-large component of proportional
representation eliminates the need to redraw districts to reflect population shifts.
Presently, each reapportionment may give rise to a new adjudication given the strict
application of the one person, one vote standard to congressional deviations.
283 478 U.S. at 147 (O'ConnorJ, concurring) (describing the plurality's standard
as susceptible "to pervasive and unwarranted judicial superintendence of the
legislative task of apportionment").
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b. Gingles: Interpreting the Voting Rights Act to Require "Rough"
ProportionalRepresentation-AddressingCongress's Silence
As opposed to the constitutional interpretation involved in
Bandemer, Gingles involves the Court's interpretation of congressional legislation, the Voting Rights Act. Although the interpretation
of a congressional statute implicates a completely different standard
of judicial review and subset of judicial concerns, a brief examination of the Court's treatment of the Voting Rights Act, nonetheless,
is instructive. Many parallels exist between the Court's reasoning in
the reapportionment cases and Gingles on the issue of judicially
manageable standards and in Bandemer and Gingles concerning
proportional representation.
While section 2 of the Voting Rights Act, as amended in 1982,
provides a broad entitlement to racial minorities to be free from
vote dilution 2" and a broad definition of what constitutes a
violation, 2s5 the Court's translation of the section 2 "results test"
into a judicially manageable standard and remedy in Thornburg v.
Gingles28 6 has severely curtailed its scope and concomitantly has
led to mechanistic application. Largely in reaction to the nature of
the plaintiffs' claim in Gingles, the Court has established singlemember, plurality-vote districting as a quasi-constitutional requirement. 28 7 Because the plaintiffs argued that the "legislative decision to employ multimember, rather than single-member, districts
... dilutes their votes by submerging them in a white majority,"288 they were forced to prove their likely success had singlemember districts been used. Because requiring single-member
districts was a remedy the Court felt comfortable applying, it held
that the ability of a minority group to form a single-member district
was the baseline for establishing a violation of section 2. By
284 See Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 (codified as
amended at 42 U.S.C. § 1973(a) (1988)) ("No voting qualification or prerequisite to
voting ... shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color.. ").
285 Section 2(b) of the Voting Rights Act establishes that a violation exists where
the "totality of circumstances" reveals that "the political processes leading to
nomination or election... are not equally open to participation by members of a
[protected class] in that its members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of their
choice." 42 U.S.C. § 1973(b) (1988).
286 478 U.S. 30 (1986).
287 See Schuck, supra note 15, at 1360.
288 Gingles, 478 U.S. at 46.
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importing the existence of a remedy into the question of whether
there was a violation, the Court limited claims to those minority
groups numerous and geographically compact enough to form a
single-member district. The Court also added two other conditions
to bringing a claim: that the minority group be politically cohesive
and that it usually be defeated by a white majority voting as a
bloc. 28 9 Although these three preconditions provide a judicially
manageable standard for defining minority vote dilution, ajudicially
manageable standard-as demonstrated in the one person, one vote
area-constricts the Court's vision of fair representation. Thus,
groups that are too small or too diffuse to control a single-member
district, but whose ability to influence elections has nevertheless
been impaired in contravention of section 2, have no remedy under
Gingies.2g°
Analogous to the Court's action in Bandemer, Congress recognized the right to an undiluted vote for racial minority groups in
section 2, but was unwilling to provide a baseline against which to
measure this right, satisfied with merely disclaiming proportional
representation as the measure of undilution. 291 Despite the "no
proportional representation" disclaimer of the 1982 Voting Rights
289 See id. at 52-61.
290 As the Court wrote:
We have no occasion to consider whether § 2 permits, and if it does, what
standards should pertain to, a claim brought by a minority group, that is not
sufficiently large and compact to constitute a majority in a single-member
district, alleging that the use ofa multimember district impairs its ability to
influence elections.
Id. at 46 n.12.
A recent Seventh Circuit case illustrates the possible unjust results under the
formalistic Gingles test. Although the plaintiffs were insufficiently large to make up
a majorityblack single-member district, they asserted that only a plurality was needed
in order to elect a representative and provided evidence that they constituted a
plurality. The Seventh Circuit affirmed the district court's grant of summary
judgment for the defendants, however, refusing to explore the totality of the
circumstances of the plaintiffs' claim without first determining whether the Gingles
threshold criteria are met. Because plaintiffs did not constitute a majority in a singlemember district, their claim was dismissed. See McNeil v. Springfield Park Dist., 851
F.2d 937, 942-43 (7th Cir. 1988), cert. denied, 490 U.S. 1031 (1989).
291 Senator Orrin Hatch recognized the insufficiency of Congress's approach of
citing the Senate Report factors as evidence of dilution without also providing a
standard by which such evidence could be assessed and evaluated. See S. REP. No.
417, 97th Cong., 2d Sess. 357 (1982).
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Act Amendments 9 2 and the Court's proclaimed cognizance of
it,2 3 the core value underlying Gingles three preconditions is a
right to proportional representation-but only for compact,
cohesive, and sizable minority groups. 294 Because it functions
within the constraints of a plurality rule system, this requirement is
best described as "rough" proportional representation. 295 A
minority group that fulfills the three Gingles threshold requirements
is entitled to representation commensurate with such strength upon
a showing that the proposed multimember district plan will prevent
it from realizing its potential.
Proportionality within the confines of single-member districts,
however, is a grossly deficient remedy for the violation of a
minority's right to undilution. Although creating a "majority
minority" district as a remedy ensures symbolic representation of
minority interests, it prevents minority voters from having an
influence over white representatives. Such a system leads to
"political ghettoization." 216 "Where blacks and whites are geographically separate, race-conscious districting by definition isolates
blacks from potential white allies such as white women who are not
geographically concentrated." 297 In wasting the votes of white
liberals submerged within white, conservative districts, majority
minority districts may not ensure minority groups, such as African292
See 42 U.S.C. § 1973(b).
But cf. supra note 262 (noting that the statutory
disclaimer disavows only proportionate descriptive representation and not proportionate interest representation).
29 See Gingles, 478 U.S. at 36. (acknowledging that "'[t]he extent to which
members of a protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered'" in evaluating an alleged
violation, but noting that § 2(b) cautions that "'nothing in [§ 2] establishes a right to
have members of a protected class elected in numbers equal to their proportion in
the gopulation'" (quoting 42 U.S.C. § 1973(b))).
See Cain, supra note 20, at 265; see also Gingles, 478 U.S. at 93 (O'Connor,J.,
concurring) ("[E]lectoral success has now emerged, under the Court's standard, as the
linchpin of vote dilution claims, and... the elements of [a] vote dilution claim[]...
create an entitlement to roughly proportional representation within the framework
of single-member districts.").
25 See Yanos,supra note 34, at 1812 (noting that "[i]n practice, courts have tended
to determine the existence of a violation of the Voting Rights Act using a rough
progortional representation standard").
Bernard Grofman & Chandler Davidson, Postscript" What is the Best Route to a
Color-Blind Society?, in CONTROVERSIES IN MINORITY VOTING, supra note 20, at 300,
312 (describing "political ghettoization" as a situation where "black voters are
concentrated in a handful of majority-black districts, with little or no influence in the
remaining districts").
27 Guinier, supra note 262, at 1163.
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Americans, proportional legislative influence. Moreover, because
majority minority districts isolate the minority groups, leaving other
districts whiter and more Republican, the representative of a
majority minority district is unlikely to exert significant influence
within the legislature. The white representatives from the remain298
ing districts will likely predominate.
As in the gerrymandering context, utilizing an STV proportional
representation electoral system as the baseline provides the Court
with both a judicially manageable standard and a remedy29 that
adequately rectifies the harm. By eliminating the winner-take-all
element of the multimember system which is deleterious to
minorities, proportional representation undermines the need for a
Voting Rights Act with respect to House of Representatives
elections. Racial minority groups previously subsumed by the white
majority will be able to elect representatives in proportion to the
number of voters who share their self-identified community of
interests. 0 0 Resolving the doctrinal inconsistencies of the present
case law, the Court's establishment of STV proportional representation would cleanly remove it from the political thicket.
CONCLUSION
While finding a right to an STV proportional representation
electoral system in the Equal Protection Clause of the Fourteenth
Amendment may seem to some an interpretational stretch, it is no
30 1
more unusual than the Court's finding, twenty-nine years ago,
that the same language mandates a one person, one vote approach.
Unlike the one person, one vote standard, however, proportional
representation would provide an equally manageable principle for
judicial application, but one which would resist devolution into
mechanistic application. The scope of the Equal Protection Clause
has expanded exponentially since the Founders first implemented
2 98
See id.
Some voting rights attorneys are beginning to consider introducing claims of
proportional representation as a remedy in Voting Rights Act cases. Edward Still, for
instance, plans to file an amicus brief in Clarke v. City of Cincinnati, No. C-1-92-228
(S.D. Ohio), suggesting that STV proportional representation is the appropriate
remedy. Telephone Interview with Edward Still, CPRI Advisory Board member (Apr.
12, 1993).
3oo See Schuck, supra note 15, at 1361 (arguing that demands for a truer, more
direct, minority representation can be satisfied only by an institutional change to
proportional representation).
01 See Wesberry v. Sanders, 376 U.S. 1 (1964).
29
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PROPORTIONAL REPRESENTATION
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the current winner-take-all, plurality rule system; a contemporary
reexamination of this structure may reveal that the requirements of
fair representation demand something else-namely, STV proportional representation.